PER VINEETA RAI, MEMBER

1.       Being aggrieved by the order of Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the State Commission) in Complaint No. 71 of 2006, four separate First Appeals have been filed.  First Appeals No. 142 of 2006, 185 of 2006, 197 of 2006 and 347 of 2007 have been filed by the Opposite Parties before the State Commission, namely, M/s Chaithanya Nursing Home, M/s Mallya Hospital and Dr. H.B. Chandrashekhar & others respectively.  The fourth appeal has been filed by Complainants Shri P. Puttaraju and his wife Smt. Vijayalakshmi for enhancement of the compensation awarded by the State Commission.

2.       Since the facts and the parties in all the four appeals are common/similar arising out of the same consumer dispute, it is proposed to dispose of these appeals by one common order by taking the facts from First Appeal No. 142 of 2006.  The parties will be referred to in the manner in which they were referred to in the complaint i.e. Chaithanya Nursing Home and Dr. S.M. Patil as OPs No.1 and 2; Mallya Hospital as OP No.3 and its Doctors i.e. Dr. H.B. Chandrasekhar (Chest Specialist), Dr. R. Srinivas (Pulmonary Specialist), Dr. P.T. Acharya (Neuro Surgeon), Dr. S. Sundar (Nephrologist) and Dr. Keshav (Cardiologist) as OPs No. 4, 5, 6, 7 and 8 respectively.

3.       Shri P. Putturaju and his wife Smt. Vijayalakshmi in their written complaint had contended that on the intervening night of 19/20.10.1999 at about 1.30 a.m. their son P.Rajashekhar (hereinafter referred to as the Patient), who was a final year medical student, had a fall, which resulted in a head injury and he was admitted to Chaithanya Nursing Home/OP-1 for treatment of the same.  After being administered medicines and injections including for epilepsy from which the Patient did not suffer, he was sent to Mallya Hospital/OP-3 for a CT Scan at about 2.30 a.m.  Next day, his renal condition was assessed after Complainants had complained that their son had no urine output but he was not treated for the same nor was he referred to any other medical institute for Haemodialysis.  This situation led to prolonged congestive cardiac failure, pulmonary oedema and multiple organ failure, which was wrongly diagnosed as viral pneumonia or Adult Respiratory Distress Syndrome (ARDS).  After the Patient went into full respiratory distress, he was referred to Mallya Hospital/OP-3 on 21.10.1999, where due to multi organ failure he passed away on 28.10.1999.  Being aggrieved by the medical negligence and deficiency in service because of which the Complainants’ highly promising and only son, who would have become a doctor, had an untimely demise, Complainants filed a complaint before the State Commission and requested that the Opposite Parties be directed to pay them jointly and severally a compensation of Rs.19 Lakhs.

4.       On being served, Opposite Parties filed written rejoinders denying the allegations made by the Complainants.  OPs 1 & 2 i.e. M/s Chaithanya Nursing Home and Dr. P.M. Patil stated that the Patient was brought to their nursing home with a history of chronic epilepsy since childhood and due to an epileptic convulsion, he had a fall in the kitchen and sustained a swelling in the right forehead and became unconscious.  On being brought to the nursing home the Patient was administered one ampule of Intra Muscular Calmpose and after examination, during which he had another convulsion coupled with vomiting, he was administered Epsolin 4 ampules (400 MG), in addition to one more ampule of Calmpose and admitted to the ICU.  Patient was referred to Mallya Hospital/OP-3 for a CT scan of the skull and brain.  He was brought back after the CT scan in a stable condition.  Unfortunately because of the Dussehara vacations and despite attempts by OP-2 the results were made available only the next day, which confirmed that the Patient had a right temporal bone fracture and mild diffuse cerebral Oedema.  OP-1 immediately started treatment, which included administration of Manitol eight hourly.  Patient was also given Taxim injection IV and continued with tablet Eptoin for controlling the epileptic fits.  Investigations/tests of blood, urine, ECG and Chest x-ray indicated that the kidney functions, heart and lungs were normal.  It was specifically stated that there was no neurological deficit and the Patient’s condition continued to improve and, therefore, on 20.10.1999 in the morning he was shifted from the ICU to his room and IV fluids were discontinued and he was advised soft oral diet.  However, Manitol, Taxim injection and the anti-epileptic medicines Eptoin and Mazetol were continued.  At about 5.30 p.m. when the Patient was examined, he was normal. However, in order to evaluate the Patient further since he had a history of epileptic convulsions, he was advised EEG. Patient stated that he would get the EEG done at Medinova Hospital and requested for a reference letter.  Although OP-2 addressed the reference letter to Dr. Manjunath for EEG as also his opinion on the same, Patient came back at 1.30 p.m. without getting the EEG done on the ground that the machine was out of order and the concerned doctor was not available.  On enquiry Dr. Patil/OP-2 came to know that the Patient had lied to him since on 21.10.1999 the ECG machine was in working status and Dr. Manjunath was also available there.  When the Patient came back, he complained of difficulty in breathing and vomited once. When Patient’s condition continued to deteriorate and his breathlessness and coughing increased and since the ventilator in the Chaithanya Nursing Home/OP-1 was already engaged with some other patient, he was shifted to Mallya Hospital/OP-3 where a ventilator was immediately available.  It was contended that at the time when Patient was shifted from Chaithanya Nursing Home/OP-1 to Mallya Hospital/OP-3 for further management, he was fully conscious and coherent in answering questions; pulse and BP was stable, respiratory rate was 56 per minute. Patient was admitted in the ICU of Mallya Hospital/OP-3 and later Chaithanya Nursing Home/OP-1 came to know that he had died on 28.10.1999. Therefore, Complainants’ allegation that the Patient’s clinical condition was not properly diagnosed and assessed is totally incorrect and unfounded and he was given the due medical attention and professional care as borne out by the medical case history papers filed in evidence.  

5.       Mallya Hospital/OP-3 as well as its Doctors i.e. OPs 4 to 8 also denied that there was any medical negligence or deficiency in service on their part and stated that Patient was brought to Mallya Hospital/OP-3 on a reference from Chaithanya Nursing Home/OP-1 in a very critical condition with a history of epilepsy, head injury and respiratory distress with severe tachypnea and tachycardia.  He was incubated and connected to a ventilator, which is a life-saving procedure.  Other supportive life-saving medication was also started, including for the treatment for renal failure. In view of the history of epileptic seizures, the anti-epileptic drugs as prescribed by Chaithanya Nursing Home/OP-1 were continued.  Despite the best efforts made by various specialist doctors to save his life, Patient passed away. 

6.       The State Commission after hearing the parties and on the basis of evidence produced before it partly allowed the complaint by inter alia concluding that the Doctors had administered a number of anti-epileptic drugs which are known to have serious side effects affecting the kidney and other organs without confirming through medical and other diagnostic tests including an EEG that the Patient was suffering from epilepsy.  The relevant part of the order of State Commission in this connection is reproduced:

“29.    …  The epilepsy, prior to the admission to the OP1 Hospital of the patient, and before the fall, is not established.  Though eminent, scholarly, Doctors treated the patient, there is a failure of not foreseeing the complications, and not overcoming them, and ultimately pleads helplessness.  They could not control the various complications in the course of the treatment.  The complainant has not established the administration of over dosage of drugs.  Literature by itself is not sufficient in that regard.  The complainants should have clarified by giving the quantum of the actual dosage of medicines given, and the required dosage of the medicine, as per literature, should have been administered, which is not done in this case.  There is an admission by the OPs Doctors regarding the side effects on the medicines administered.  The young Doctor without any serious complaint before the alleged fall underwent treatment from the OPs 1 to 8 developing serious diseases ended in his death, as the ultimate result within a span of less than 15 days treatment.  Under these circumstances, the negligence & deficiency in service is established against OPs.  …”

The State Commission after considering the bills and receipts produced and the facts and circumstances of the case, partly allowed the complaint and directed OPs-1 and 2 to pay a compensation of Rs.1.00 Lakh.  OPs No. 3 to 8 were also directed to pay a compensation of Rs.2.00 Lakhs to the Complainants with interest @ 10% per annum from the date of complaint till realization.  Cost of Rs.2000/- was also ordered to be paid by each of the Opposite Parties.  Hence, the present set of appeals.

7.       Learned Counsel for the parties made oral submissions.

8.       Learned Counsel for Chaithanya Nursing Home/OP-1 and Dr. P.M. Patil/OP-2 reiterated that the Patient’s father himself had stated that the Patient had a history of epilepsy and this coupled with the fact that within a short span of his admission he suffered a seizure followed by vomiting, was adequate to conclude that the Patient did have epilepsy.  Therefore, to control the epileptic fits, he was given standard anti-epileptic medicines and a number of other drugs as required were also given after conducting a series of tests, which included ECG, CT Scan, Blood, Urine tests etc. which confirmed that the heart, kidney and lungs were normal.  Patient was referred for an EEG but the Patient came back without getting the EEG conducted, for which Opposite Parties cannot be held responsible.  It was also stated that because of the correct treatment given by highly qualified Doctors to the Patient his condition substantially improved from the time of his admission and it was only in the afternoon of 20.10.1999 that Patient started complaining of acute breathlessness and because the ventilator though present in the hospital was not immediately available, Patient was shifted to Mallya Hospital/OP-3 in the best interest of his health.  It was specifically stated that at the time of his discharge, there was no symptom of renal failure.  The Karnataka Medical Council, who had investigated this incident, had also exonerated Chaithanya Nursing Home/OP-1 as also Dr. S.M. Patil/OP-2 of any medical negligence or deficiency in service on their part.  

9.       Learned Counsel for Mallya Hospital/OP-3 as well as counsel for OPs 4 to 8 stated that the Patient was admitted to Mallya Hospital/OP-3 in a critical condition on 21.10.1999 following a reference from Chaithanya Nursing Home/OP-1 to provide him ventilator support for further management with a diagnosis of ADRS, seizure and head injury.  At the time of the admission, Patient had also developed acute renal failure, pulmonary oedema and also respiratory failure.  After clinical evaluation and laboratory tests the required medicines were prescribed and some medicines including those prescribed for controlling epileptic fits by OP-1 was continued since abrupt withdrawal of these medicines is medically contraindicated.  Patient had come in a critical condition and all efforts were made by highly qualified doctors in a well-equipped hospital using their best professional judgment to treat him and save his life.   

10.     We have heard learned counsel for parties and have also carefully gone through the evidence on record. Patient’s admission in Chaithanya Nursing Home/OP-1 in an unconscious state after a fall is not in dispute.  It is also in evidence that a number of clinical and diagnostic tests were done on the first day, which indicated that there was no abnormality in Patient’s lung, kidney or heart functions.  A CT scan conducted that evening and whose results were available next day indicated a right temporal bone fracture and mild cerebral oedema.  However, what is important to note is that anti-epileptic medicines were given to the Patient reportedly on Complainants giving this information and without conducting any diagnostic or clinical tests specifically the required EEG and blood test. Complainants have, however, vehemently denied that they had told that their son had a history of epilepsy.  Even though the EEG was not conducted on the second day, the anti-epileptic medicines Eptoin and Mazetol continued to be administered and in the referral letter Mallya Hospital/OP-3 were also told that Patient had epilepsy, for which he was being given drugs.  Even Mallya Hospital/OP-3 without conducting any EEG or other tests and on the basis of OP-1’s referral letter continued the anti-epileptic drugs despite the fact that OP-6/Doctor from Mallya Hospital/OP-3 had stated before the State Commission in his cross-examination that it is necessary before starting anti-epileptic drugs to ensure that the Patient had epilepsy and that an EEG can be conducted even on an unconscious patient to verify this fact.  We note that it has also come in evidence before the State Commission and is further borne out by extensive medical literature on the subject that irrational administration of anti-epileptic drugs can cause serious side effects.  Manitol for example can cause fluid overload, pulmonary oedema as also progressive renal failure, all of which are ailments which the Patient did not have at the time of his admission in Chaithanya Nursing Home/OP-3 as is clear from the medical history of the Patient filed by Chaithanya Nursing Home/OP-1 but which later occurred and contributed to his death in Mallya Hospital/OP-3.  The contention of Mallya Hospital/OP-3 and its Doctors (OPs 4 to 8) that anti-epileptic drugs were continued on the ground that immediately stopping these drugs is contraindicated appears to be somewhat of a lame excuse for irrationally administering drugs without proper diagnosis.  Thus, there appears to be a nexus between the irrational and unwarranted administration of anti-epileptic drugs and the Patient’s serious renal and other medical conditions which consequently developed when he was under treatment in Chaithanya Nursing Home/OP-1 and Mallya Hospital/OP-3.

11.     What constitutes medical negligence is now well established through a number of judgments of this Commission as also of the Hon’ble Supreme Court.  Based on the touchstone of the Bolam’s test, one of the principles is that whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.  Looking at the facts in the instant case, it is very clear that this practice was not adopted by the Doctors at either Chaithanya Nursing Home/OP-1 or Mallya Hospital/OP-3, who admittedly administered anti-epileptic drugs on a Patient without conducting the required clinical or diagnostic tests, including the most widely used EEG and blood tests to confirm epilepsy. In the instant case, by not exercising this due care, medical negligence is writ large on the part of both Chaithanya Nursing Home/OP-1 and Mallya Hospital/OP-3 and their Doctors.  Admittedly OPs administered anti-epileptic drugs when there was no medical evidence that the Patient had epilepsy, which resulted in serious side effects and medical problems.  In view of these facts, we agree with the finding of the State Commission that there was medical negligence on the part of all Opposite Parties.     

12.     The State Commission had directed Chaithanya Nursing Home/OP-1 and Dr. S.M. Patil/OP-2 to pay Rs.1.00 Lakh and to Mallya Hospital/OP-3 and its Doctors (OPs 4 to 8) to pay Rs.2.00 Lakhs to the Complainants.  Looking at the facts of this case, including the fact that the Patient’s promising and productive career as a prospective doctor, which would have been of enormous benefit to his economically poor parents and to the community at large, was cut short by his death, the compensation awarded by the State Commission is much less than what is warranted in the instant case.  We are, therefore, of the view that a compensation of Rs.4 Lakhs to be paid jointly and severally by Chaithanya Nursing Home/OP-1 and Dr. S.M. Patil/OP-2 and a similar compensation of Rs.4 Lakhs to be paid jointly and severally by Mallya Hospital/OP-3 and its Doctors/OPs 4 to 8 would meet the ends of justice.

13.     To sum up, First Appeals No. 142 of 2006, 197 of 2006 and 347 of 2006 filed by Chaithanya Nursing Home & Anr. (OPs 1 & 2), Dr. H.B. Chandrashekhar & Ors. (OPs 4 to 8) and Mallya Hospital (OP-3) respectively are dismissed and the order of the State Commission of medical negligence against them is upheld with the modification of enhanced compensation as stated in para-12 of the order.  Rest of the directions of the State Commission to Opposite Parties regarding interest on the awarded amount and the cost are also upheld.  First Appeal No. 185 of 2006 filed by the Complainants stands partly allowed.  Opposite Parties are directed to pay the awarded amounts to the Complainants within a period of 8 weeks.