By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The minor child, the complainant born in Nizar Hospital Valancherry on 08/09/2011. Later on, 16/02/2013 he was admitted in the Nizar Hospital with the complaint of diarrhea, vomiting, fever and seizure. On 17/02/2013 he was shifted to intensive care unit and on the same day by 5.30 pm he got complaint of epilepsy and he was managed with medicine. Thereafter sometimes at 6.10 pm there was cardio – respiratory arrest to the complainant and also breathing problem. On 18/02/2013 he was shifted from intensive care unit to the room. There was no improvement for his neurological condition and so he was referred to a higher treatment center. Accordingly, he was taken to EMS Memorial hospital & research center and he got admitted in the hospital on 19/02/2013 itself. The complainant was asked to furnish consent letter to the opposite party and he duly issued the same to the opposite parties.
2. The complainant was given certain medicines on 19/02/2013. But nothing has been recorded in the medication chart of the complainant. It is recorded that injection IV was given as 2.5mg. Certain medicines prescribed on 19/02/2013 seems as stopped on 22/02/2013 and thereafter on 24/02/2013. But the complainant was not informed why the injection was prescribed and why it was stopped. The complainant submit that he was administered so many injections but most of them were unnecessary and also in excess of requirement. The injections given to the complainant was in a careless manner. The complainant was administered various antibiotics without conducting proper investigation. As a result, there developed gangrene to the hand of complainant. Due to improper treatment from the side of opposite party led to develop gangrene to the right hand of the complainant. There was no proper treatment was given to the complainant and thereby it was caused amputation of right palm of the complainant. The complainant was not getting proper treatment from the EMS hospital and so the parents of the complainant taken up the complainant to the specialty hospital at Ernakulum. The complainant was examined by Dr. Asha Cyriac from the super specialists hospital, Ernakulum and the doctor suggested cutting and removing the right hand of the complainant. Thereafter the complainant was taken to MIMS hospital Calicut.
3. Since from the date of admission in the second opposite party hospital i.e 19/02/2013, there was no improvement in the condition of complainant. During the treatment period black color developed on the right hand of complainant and so the injection canula was shifted from right hand to the left hand of the complainant on 23/02/2013. Dr. Jaseem advised to cut down the right hand of the complainant. On 23/02/2013 the complainant undergone fasciotomy. On 24/02/2013, complainant asked with pediatric surgeon about the incidents. But it was said that “എന്താണ് സംഭവിച്ചത് എന്ന് എനിക്ക് അറിയില്ല എന്നോട് ഓപ്പറേഷu ചെയ്യാu പറഞ്ഞു ഞാu ചെയ്തു”. Thereafter one week of fasciotomy, it was closed. The opposite party dragged the closing after fasciotomy. The complainant alleges the injection was not given proper place. The complainant was developed dry gangrene and it was extended up to elbow. Moreover, injections were given as intravenous instead of intramuscular vein.
4. The complainant alleges there was no proper treatment from the side of first opposite party and due to the deficiency in treatment i.e., lack of treatment facilities, administration of avoidable medicine, improper supply of medicine, lack of proper chemical analysis led the complainant to develop dry gangrene. So, the complainant discharged from the hospital on 14/03/2013. The complainant got admitted in MIMS hospital due to severe abdominal pain. The complainant was provided treatment on 20/02/2013 at about 3 pm, thereafter the complainant availed treatment only after midnight on 21/02/2013. There are no records to show what are transaction took place during the relevant period. The complainant caught diarrhea on 23/02/2013 and felt inconvenience to access IV and there was swelling and as a result 23/02/2013 a decided to cut down. On 23/02/2013 at 5. 45 pm the complainant could realize the color change to right hand. The opposite party did not provide any treatment for the discoloration. The opposite party reported dry gangrene only after 23/02/2013 and thereafter on 05/03/2013. Hence the submission of the complainant is that the opposite party did not provide treatment to the complainant from 23/02/2013 till 05/03/2013. The complainant could see discoloration on 24/02/2013 overnight to the right hand of the complainant. On 25/02/2013 there was oozing from the surgery site of the complainant. The complainant submits that Dr. Paul had directed to stop heparin injection and Dr. Ramdas instructed to stop injection methyl prednisolone and thereafter Dr. Ramdas advised Metroid MetroGyl. Even after that oozing from the surgery sight of the complainant continued on 26/02/2013 and 27/02/2013. There was abdominal distention to the complainant during the days. Abdominal USG was taken on the same day. The complainant felt oedema and blood transfused on 28/02/2013 after suturing of fasciotomy. There was swelling at the sutured site. Even then doctor Ramdas advised for cardio thoracic consultation.
5. On 23/02/2013 there was discoloration to the right hand of the complainant, but the first opposite party could realize the same as dry gangrene only on 05/03/2013. The patient was admitted in the category of dangerous ill list and it was subsequently removed from the list. The opposite party did not conduct Doppler study before starting heparization. It is also noted to state that after commencing heparization proper diagnosing and intervention and evaluation has not done. There is no knowledge about the reason while de-heparization done after injection protamine started. There was no evaluation after starting heparization and continuing the same caused bleeding and thereafter started protamine. The complainant alleges even after noting discoloration to the right hand of the complainant the opposite party did not do Doppler study or any test. If the opposite party had conducted Doppler study and treatment was proceeded in accordance with the report it could have been avoided the development of dry gangrene. So, there is negligence on the part of the opposite party. The complainant submits that due to arterial block on hand caused gangrene. It is further alleging the lack of Doppler study for vessel patency is a medical negligence on the part of the opposite party. It is also alleged after fasciotomy no records has been kept to show the pulse improvement after the same. The complainant was undergone Doppler study immediately on admission at MIMS hospital. As a result, it was found that there is gangrene with Mummification has already been setup, it was difficult to protect the limb of the complainant and the same was explained to the parents and subsequently Dr. Abraham Mathew conducted surgery to remove the palm of the complainant. Thereafter the complainant was discharged from the hospital on 27/03/2013. Hence the complainant prays for compensation of rupees altogether Rs.13,00,000/- and also cost of the proceedings.
6. On admission of the complaint, notice was issued to all opposite parties and on receipt of notice all of them entered appearance and filed version denying the entire averments and allegations in the complaint.
7. The first opposite party filed version denying the entire averments and allegations in the complaint and contended that the complaint is not maintainable either in law or on facts. Complaint is frivolous, vexatious and devoid of truth or bonofides. The complainant suppressed the true facts solely for the undue financial advantage of the complainant.
8. The complainant was admitted to the second opposite party hospital on 19/02/2013 at 10.15 pm as a referred case from the fourth opposite party hospital with features of recurrent seizures, diarrhea, vomiting, dehydration and hypotension. He gave a history of treatment at the fourth opposite party hospital with fever and seizures followed by cardio respiratory arrest managed with resuscitation and mechanical ventilation for a period of around 24 hours in that hospital. On admission in the second opposite party hospital the patient was found to be drowsy, irritable and febrile with a temperature of 990 F, pulse rate 152/mt, BP 70 systolic and a respiratory rate of 28/mt. There was hepatomegaly and pupils were reacting. The patient admitted to pediatric intensive care unit with provisional diagnosis of acute dysentery, severe dehydration, meningo encephalitis, broncho pneumonia and seizures. The patient was advised necessary investigations including blood CBC, ESR, electrolytes, calcium, liver function test, and thyroid function test, Urine and stool routine examination etc. and MRI of the brain. On the basis of clinical evaluation and investigations he was put in dangerously ill list (DIL). He had initial assessment in the emergency department and examined by the duty pediatrician in the pediatric department and admitted to pediatric intensive care unit under the first opposite party. The first opposite party had conducted detailed clinical examination and the patient was sick look in, irritable and drowsy with severe dehydration and started medicines and supportive care. The condition of the patient and modality of treatment was discussed with by standers and they voluntarily consented for continuing treatment with antibiotics and supportive medical measures after fully conversed with the leave for continued medication and the risk factors. The patient was administered various medicines. The patient was seen by consultant neurologist of the hospital and advised to continue the medicines and supportive measures and advised MRI and EEG. The MRI of brain showed bilateral restricted definition in parietal lobes suggestive of acute disseminated encephalomyelitis.
9. The ECG showed diffuse cerebral dysfunction supporting the diagnosis. The lumbar puncture test result was also co-relating with the clinical diagnosis. Gastro enterology consultation was done for hepatomegaly and altered liver function test. As per the investigation the patient was advised to continue the same line of treatment. Patient had progressive improvement in neurology function and he became conscious, Diarrhea, vomiting etc. subsided and his general condition improved. The patient required any intravenous medications for his serious and potentially life-threatening clinical condition. The medicines were prescribed in standard doses as per accepted protocol and in strict regard to pharmacological guide lines. On 23/02/2013 the patient developed a condition of difficulty in getting IV access for administration of medications and pediatric surgeon was consulted for a cut down in the lower limb for IV accesses. Under all aseptic care and precautions the pediatric surgeon conducted the procedure for IV access on 23/02/2013 by a cut down in the lower limp. This is the routine procedure done to continue IV medication which was indispensable for the treatment of the patient in the diagnosed critical disease condition.
10. On 24/03/2013 at 10 am the duty pediatrician had noted slight discoloration of right hand and pediatric surgeon was consulted. Pediatric surgeon had seen and examined the patient at around 10.15 am and found absence of pulse in the distal forearm with oedema and discoloration of medical aspect of hand and he advised fasciotomy. Cardio vascular surgeon had also seen the surgeon and advised to proceed with fasciotomy and instructed to start on heparin. The bystanders were informed about the condition of the right upper limb and the need for emergency fasciotomy for vascularization and written informed consent was taken. Under on aseptic care and precaution, fasciotomy was done on the same day jointly by the pediatric surgeon and cardiovascular surgeon. The vessels were visualized directly and papaverine instillation was also done over the vessels. The condition of the patient’s right forearm had been assessed and continued medical measures to re instate avascularity along with general supportive measures. Pediatric surgeon and cardiac surgeon had attended and assessed condition and explained to the parents about the risk of gangrene due to persistence of vascular ischemia. In spite of timely fasciotomy and administration of heparin, the avascularity of the lateral part of the distal forearm and hand persisted. The patient was noted to have continued discoloration of fingers and avascularity of the lateral part of the distal forearm and hand which progressed to dry gangrene. The patient remained heparin and had continued abdominal symptoms and the first opposite party had continued antibiotics and supportive measures. All the measures necessary for the management of a patient in a critically ill condition had been taken by the first opposite party as per accepted practice. The management of the ischemic condition caused to upper limb of the patient were done through fasciotomy and supportive measures by the pediatric surgeon and cardiac surgeon attached to the second opposite party hospital. But the avascularity of the lateral part of the distal forearm and hand persisted and progressed to dry gangrene. On this clinical condition, the pediatric surgeon advised removal of the gangrenous part of the limp and consulted the orthopedic surgeon for the second opposite party and he had also recommended for the same. The need for excision of gangrenous part was explained to the parents of the patients but they wanted to take a second opinion regarding chance of salvage of the right upper limp and further management. Hence as per request of the parents, the patient was referred to specialist hospital at Ernakulum, on 13/03/2013 for further management.
11. The patient was admitted to the second opposite party hospital in a very serious and potentially life-threatening condition of acute disseminated encephalomyelitis, acute dysentery and severe dehydration. The first opposite party had conducted all the necessary investigations and treated the patient on the basis of proper diagnosis. Also, opinions of neurologist and gastroenterologist were taken. Vascular compromise of limbs can occur due to various reasons in such a patient who was critically ill and had potentially life-threatening neurologic disease. The dehydrate state followed diamoric and vomiting itself can produce a thrombotic state in the blood vessel producing coating of the blood inside the blood vessel causing ischemia. Odesa and extra vexation can also produce vascular compromise in such situation. The patient in such a critically ill condition required many lives supporting medication mainly through intra Venus root and when he met with difficulty in intra Venus axes he was referred to pediatric surgeon and he had done the procedure of cut down for IV line. The occurrence of vascular compromise of right upper limb of the patient who also timely detected and managed by fasciotomy and other medical measures jointly by the pediatric surgeon and cardio vascular surgeon attached the second opposite party hospital. The first opposite party had exercised due diligence and care in the diagnosis and treatment of the patient who was brought with meningo encephalitis, Bronchopneumonia and seizures which posed a potentially life-threatening condition. The medicine prescribed by the first opposite party were absolutely necessary for saving the patient and required to be administered through IV rout as per guidelines. There was no negligence or deficiency in service on the part of the first opposite party at any point of time in the mange of the patient and he is not liable to compensate the complainant.
12. The opposite party denied the allegation contained in para three of the complaint. Inj Diazepam was prescribed as SOS (if required) and if the same is not recorded as administered it means that it was not given in the given condition of the patient. Medicines were prescribed to the patent in the given clinical condition which were indicated and some medicines were stopped on subsequent clinical set up on further evaluation showing change in condition as per accepted protocol. The opposite party denied the allegation that the patient was given excess injections carelessly and unnecessarily is highly ill motivated and so denied. The opposite party denied the allegation that the patient developed gangrene due to misuse of medicines including antibiotics excessively without proper facilities in hospital and due to the failure to conduct proper test is also purposely made for undue advantage and so denied. The allegation that the situation necessitating amputation of hand was due to failure to render proper treatment is not tenable or sustainable. The medicines prescribed by the first opposite party for the diagnosed disease condition of the patient were absolutely in dispensable for treatment and necessarily be administered as IV and the same modality would have been followed even if the child taken to any other center.
13. The complainant admitted that after noticing early signs of ischemia by discoloration, the patient had been attended and treated by Dr. Jasim and Dr. Paul attached to the second opposite party hospital being the consultant specialists. They had properly diagnosed the condition and emergency fasciotomy was done to save the affected part but the patient developed dry gangrene due to vascular compromise and potentially life threatening neurological disease, dehydrated state leading to thrombotic condition in blood vessels which are inherent in the disease process. The opposite party denied the statement that Dr. Paul had responded as if he was unaware of the event and done what was instructed is highly ill motivated. The statement that there was no improvement in the general condition by the treatment in the second opposite party hospital is not sustainable and so denied. The allegations that site of injection was not proper and thereby dry gangrene extended up to the elbow, the intra macular injection were given to the patient as intravenous is not correct and so denied.
14. The allegation that the patient developed dry gangrene due to deficiency in treatment, lack of facilities in hospital, improper administration of medicines and failure to provide treatment and proper tests is highly ill motivated and so denied. The statement that after 3 pm on 20/02/2013 it was seen the symptom but treatment was given at midnight on 21/02/2013 that whatever treatment given to the patient is not clear from treatment records etc. are not correct and so denied. The modality of treatment given to the patient is well recorded in the treatment records pertaining to the patients and the complainant is making allegations regarding treatment without properly studying and evaluating the treatment records in the correct perspective. The statement that no treatment was given for discoloration from the second opposite party hospital is highly ill motivated and so denied. Cardiothoracic consultation was advised when the patient was noted to have developed signs of ischemia which is concerned specialty. The averment that there was delay in diagnosing dry gangrene is not tenable or sustainable and so denied.
15. The second opposite party filed version denying the allegations in the complaint. According to second opposite party the complaint is not maintainable.
16. The second opposite party submitted that they are the one of the largest co-operative hospitals, working in the name and style of EMS Memorial Cooperative hospital and research center. The hospital is working for the last several years without any profit motive. The hospital is having almost all modern medical facilities. The hospital also providing free treatment to the needy people.
17. The opposite party submitted that the complainant was referred from Valanchery Nizar hospital for the better treatment on 19/02/2013 and the complainant was treated in the hospital also. The complainant was given all the facilities in the hospital. The opposite party provided all the treatment facilities and the service of expert doctors. The complainant has not stated that the opposite party was not having treatment facilities. So, the submission of the opposite party is that they are an unnecessary party in the proceedings.
18. The complainant was given all the treatments and service to recover the ailment. The treatment provided was proper and suitable. The opposite party realized reasonable amount towards the treatment. Hence there is no merit in the complaint regarding the allegation against the opposite party and so the complaint is liable to be dismissed.
19. The third and fourth opposite parties also filed version denying the averments and allegations in the complaint. The complaint is not maintainable either in law or on facts. There is no negligence or deficiency in service on the part of third and fourth opposite parties. The complainant purposely framed the complaint by suppressing the true facts solely for the undue financial advantage of the complainant. The third and fourth opposite parties submitted the case as follows: - The complainant aged 1 ½ and years old was brought to the fourth opposite party hospital at about 4.30 pm on 16/02/2013 and consulted the third opposite party in a condition of having acute diarrheal disease with severe dehydration. The patient reportedly had history of multiple episodes of blood-stained loss tool for three days, vomiting two days and high-grade fever of three days duration and was under treatment from else were. After examination the third opposite party advised admission and started IV fluids and antiemetic and antipyretic treatment. At about 5.30pm on the same day the child patient developed seizures and the same was controlled with medicines and he had been kept under close monitoring. At 6.10 pm the patient developed cardio- respiratory arrest with desaturation and the third opposite party immediately started cardio respiratory resuscitation, endotracheal intubation with 100% oxygen through bag and tube ventilation and shifted the child to ICU. By the timely resuscitation and supportive measures, the child was able to breathe adequately by early morning on 17/02/2013 and hence endotracheal tube was removed and kept the baby in ICU for close monitoring of vital signs. On 18/02/2013 the patient’s hydration status improved and he was able to eat and drink himself and hence shifted to the room. On 19/02/2013 the patient had manifested some neurological deficit symptoms and hence referred to the neurologist for consultation. The neurologist had seen the patient and advised EEG. Since the patient was febrile and irritable and his neurological condition did not show satisfactory improvement, the third opposite party had discussed his condition with parents and informed about the need for further neurological evaluation based on CSF examination (LP), CT brain and advised reference to higher center. As per reference the parents took the child patient to higher center on 19/02/2013. The third and fourth opposite parties had treated the patient and with due care and caution and there was no negligence or deficiency in service on their part at any point of time in the management of patient. The general condition of the child patient was worse at the time of admission to fourth opposite party hospital due to acute diarrheal disease acute and dehydration and subsequently developed cardio respiratory arrest. The baby was saved from a deteriorating condition by timely efficacious treatment and care given by the third opposite party and other medical staff attached to the fourth opposite party hospital.
20. The opposite parties contended that third and fourth opposite parities are unnecessarily arrayed as parties in the proceedings and there is no specific allegation against them. The opposite parties submitted that at the time of reference from the fourth opposite party hospital, the complainant was not having any abnormality to his upper limbs. The third and fourth opposite parties arrayed as parties in the complainant solely with an ulterior motive causing undue hardship and harassment and taking undue financial gain against them under duress of litigation.
21. The opposite parties further submitted that the compensation claimed is highly exorbitant, exaggerated and without any substance, merit or rationale. The third opposite party is having qualification of diploma in child health after medical graduation with experience of two years as pediatrician. The fourth opposite party is a renowned hospital doing service of experienced and qualified doctors and other medical staff with required facilities and the complainant is decided to tarnish his good will for undue financial motive of the complainant and so the complaint is liable to be dismissed.
22. The fifth opposite party submitted the fact as follows. The complainant is aged 1½ years, was brought to the filth opposite party’s hospital on 14/03/2013 as referred case from the second opposite party hospital and on examination found the patient as febrile and irritable. There was dry gangrene to the right hand extending up to the mid forearm with mummification of fingers and palm. Skin necrosis was seen till the proximal part of the forearm just short of the elbow joint. No active movements of the fingers were present. The complainant admitted to the hospital and started investigations including culture and sensitivity of blood, swab and pus and Doppler vascular study was conducted. Doppler study revealed good flow till mid forearm and beyond that flow could not be appreciated. Since dry gangrene with mummification had already set in chance of saving the limb was absolutely nil. A clinical management group meeting was convened with participation of experts from surgery, pediatric surgery, pediatrics and neonatology to discuss the case of the patient regarding possible etiology, present status, and course of treatment. The functional and cosmetic aspects were considered and the palm was to save as much out the limb as possible without compromising life of the patient. The fifth opposite party had discussed with father and other relatives of the patient about present condition in which amputation was unavoidable but all possible measures are being taken to save limb to the extent possible. But if gangrene became infected and general condition deteriorated, amputation would have to be on an emergency treatment measures to save life and the bystanders were well aware of the clinical condition and consented for continuation of treatment as above.
23. The patient was started on conservative management with broad spectrum anti biotic, IV fluids and supportive measures waiting culture and sensitivity report. In view of low hemoglobin value, a PRBC transfusion was given. On noting cardiac murmur on examination, an echo was done by the pediatric cardiologist to rule out cardiac vegetations and its result came as normal. On 16/03/2013 and 19/03/2013 the patient underwent debridement of the necrotic area under general anesthesia as his condition improved and aseptic was under control. The necrotic issues were removed as much as possible to prevent pockets of pus developing below it. Even after conservative management under antibiotic cover and stabilizing the general condition of the patient, there was no favorable indication of any improvement in the ischemic limb and as per conciseness opinion of the clinical management team, below elbow mid forearm amputation was recommended since further waiting might have led to the occurrence of wet gangrene endangering life handling. The father and other relatives were informed about the decision for amputation and conveyed the reasons and they voluntarily consented for amputation. Under all aseptic care and precautions below elbow mid forearm amputation was done and the wound left open to granulate as there was no adequate viable skin to cover the defect. On 26/03/2013 wound dressing was done and wound appeared to be clean and healthy and on 27/03/2013 the patient was discharged with an advice for continuing oral antibiotics and daily dressing at local hospital.
24. The sixth opposite party also filed version denying the allegations in the complaint. According to sixth opposite party the complainant is not consumer and there is no consumer dispute with the opposite party. It is submitted that there was no negligence, carelessness or deficiency in service on the part of the opposite party or any doctors or staff attached to the opposite party hospital. The complainant was examined and treated by the opposite party and the doctors and other staff attached to the opposite party hospital as per the universally accepted standard medical protocol, besting all care, caution and attention.
25. The sixth opposite party hospital is well equipped super specialty hospital with state of the heart equipment’s and qualified and well experienced doctors, paramedics and medicine staff. The opposite party contended that as per averments in the complaint the opposite party is an unnecessary party. The opposite party contended that there is no allegation against the opposite party or against fifth opposite party in the complaint, and no reliefs are seen claimed against the opposite party or against fifth opposite party. Hence the complaint is bad for misjoinder of unnecessary parties. Hence the submission is the issue of misjoinder of unnecessary parties and maintainability of the complaint against the opposite party is liable to be heard and decided as a preliminary issue before proceeding with the matter any further, and it is submitted that the complaint is liable to be dismissed against the opposite party with cost.
26. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A 51. The fourth opposite party produced document and it is marked as Ext. B1. The second opposite party produced treatment records of the complainant and the parties verified the same but not marked as Exibhit.
27. The complainant side examined witness PW1 and PW2. PW1 is Mrs. Arifa the mother of the complainant. PW2 is Mr. Hiler, the photographer. The first opposite party examined as DW1.
28. The complainant and second opposite party filed notes of argument. Heard parties, perused affidavit and documents and also notes of arguments. The following points arise for consideration.
Whether there was negligence on the side of opposite parties in treating the patient?
Whether the amputation of right palm of the complainant was inevitable?
Relief and cost?
29. Point No.1 and 2
The complainant, minor boy was initially taken to Nizar hospital Valanchery on 16/02/2013 and treated there as inpatient up to 19/02/2013. Thereafter the he was taken to second opposite party, EMS Memorial cooperative hospital on 19/02/2013 night by 10.15 pm and was treated there as inpatient up to 13/03/2013. On 13/03/2013 the boy was discharged from the EMS cooperative hospital at the request and was taken to Ernakulum Specialists hospital and on the same day he was taken to MIMS hospital Calicut. The complainant was treated at MIMS hospital from 14/03/2013 to 27/03/2013. Ext. A1 document reveals the condition of the complainant at the time of admission at Nizar Hospital Valanchery. He was suffering the ailment for three days at the time of admission in Nizar hospital. On 19/02/2013 the patient was referred to higher treatment center for the management of ailment since the neurological condition was not improving and in need of neurological study, the patient was referred to higher center. Thereafter the complainant was under the treatment of first opposite party, in the second opposite party hospital. The second opposite party conducted various investigations as part of the treatment. Fasciotomy was done on 23/02/2013 and subsequently there was medical consultation for the amputation of right palm of the complainant. Then the relatives of the minor complainant sought discharge from the hospital and they took the patient to specialists hospital Ernakulum and after obtaining medical opinion from the specialist hospital Ernakulum the patient was taken to MIMS hospital Calicut and being the considered opinion from the MIMS hospital also was to do amputation of right palm, the complainant underwent surgery to cut and remove right palm from the fifth opposite party hospital and thereafter discharged from the hospital on 27/03/2013. Now the complainant alleges medical negligence against the opposite parties and later it was submitted that there is no allegation against the sixth opposite party.
30. The allegation is leveled against the first and second opposite parties where the complainant undergone treatment from 19/02/2013 to 14/03/2013. The complainant alleges there was negligence from the side of first opposite party in treating the minor boy. The complainant alleges unnecessary medicines were administered that too profusely, there was careless injection of the medicine, antibiotics were given without any norms, there was no sufficient facilities to treat the patient, no proper pre-surgical examination was done etc. There was no medication for a long interval, though discoloration was noted and the gangrene was detected only after 10 days of the same.
31. The first opposite party, the treated doctor specifically contended that he treated the patient with due care and attention following accepted principles of medical science with due diligence and expertise. The first opposite party submitted that the complainant was admitted to the hospital on 19/02/2013 at about 10.15 pm as a referred case from the fourth opposite party hospital with features of recurrent seizures, diarrhea, vomiting, dehydration and hypotension. The treatment history of the patient from fourth opposite party hospital revealed that the complainant admitted in the fourth opposite party hospital with fever, seizures followed cardio respiratory arrest, managed with resuscitation and mechanical ventilation for a period of around 24 hours. At the time of admission of complainant in the second opposite party hospital the complainant was drowsy, irritable and febrile with a temperature of 990 F, pulse rate 152/mt, BP 70 systolic and a respiratory rate of 28/mt. The patient admitted to pediatric intensive care unit with provisional diagnosis of acute dysentery, severe dehydration, meningo encephalitis, broncho pneumonia and seizures. Then advised necessary investigations including MRI of the brain. On the basis of clinical evaluation and investigations the complainant was put in dangerously ill list. The first opposite party conducted detailed clinical examination and the patient was found sick looking, irritable and drowsy with severe dehydration and started medicines and supportive care. The condition of the patient and modality of treatment was discussed with bystanders and they voluntarily consented for continuing treatment with antibiotics and supportive medical measures after fully conversant with the need for continued medication and the risk factors. The patient was given medicine and seen by consultant neurologist of the hospital and advised to continue the medicine and supportive measures and advised MRI and EEG. The MRI of brain showed bilateral restricted definition in parietal lobes suggestive of acute disseminated encephalomyelitis. The EEG showed diffuse cerebral dysfunction supporting the diagnosis. Lumbar punctual test result was also co-related with the clinical diagnosis. Gastroenterology consultation was done for hepatomegaly and altered lever function test. As per investigation, the patient was advised to continue the same line of treatment and progressive improvement in neurologic function and he became conscious. Diarrhea, vomiting etc. subsided and his general condition improved. The patient required many intervenes medication for his serious and potentially life-threatening clinical condition. The medicines were prescribed in standard dosses as per accepted protocol and in strict regard to pharmacological guidelines. On 23/802/2013 the patient developed a condition of difficulty in getting IV access for administration of medications and pediatric surgeon was consulted for a cut down in the lower limb for IV access. Under all aseptic care and precautions the pediatric surgeon conducted the procedures for IV access on 23/02/2013 by a cut down in the lower limb. This is the routine procedure done to continue IV medication which was indispensable for the treatment of the patient in the diagnosed critical disease condition.
32. The first opposite party submitted that on 24/03/2013 at 10 am the duty pediatrician had noted slight discoloration of right hand and pediatric surgeon has consulted. The pediatric surgeon examined the patient at around 10.15 am and found absence of pulse in the distal forearm with oedema and discoloration and he advised fasciotomy. The cardio vascular surgeon also seen the patient and advised to proceed with fasciotomy and instructed to start on heparin. The fasciotomy was done under all aseptic care precautions jointly by the pediatric surgeon and cardio vascular surgeon. The vessels were visualized directly and papaverine installation was also done over the vessels. The condition of patient’s right forearm had been assessed and continued medical measures to reinstate vascularity along with general supportive measures. Pediatric surgeon and cardiac surgeon had attended and assessed condition and explained to the parents about the risk of gangrene due to persistence of vascular ischemia. The first opposite party further stated that in spite of timely fasciotomy and administration of heparin the avascularity of the later part of the distal forearm and hand persisted. It was noted to have continued discoloration of figures and avascularity of the lateral part of distal forearm and hand which progressed to dry gangrene. The patient was continued antibiotics and supportive measures. The submission of the opposite party is that all measures necessary for the management of a patient in a critically ill condition had been taken by him as per accepted medical practice. The management of the ischemic condition caused to upper limb of the patient were done through fasciotomy and supportive measures by the pediatric surgeon and cardiac surgeon attached to the second opposite party hospital. But the avascularity of the lateral part of distal forearm and hand persisted and progressed to dry gangrene. Then considering the clinical condition the pediatric surgeon advised removal of gangrenous part of the limb and consulted the orthopedic surgeon for second opinion and he also recommended for the same. The need for excision of gangrenous part was explained to the parents of the patient but they wanted to take a second opinion regarding chance of salvage of the upper limb and further management. But as per the request of the parents the patient was referred to specialist hospital at Ernakulum on 13/03/2013 for further management.
33. On perusal of the complaint and affidavit it can be seen that the complainant has got a case that the patient was administered unnecessary medicines and which resulted gangrene. But nowhere in the affidavit or in the complaint it has stated what are the unnecessary medicines administered to the patient by the first opposite party from the second opposite party hospital. The complainant is not a medical expert to depose about the medicines which are necessary and which are not necessary. The first opposite party contended that all the medicine prescribed by him were absolutely necessary for the patient and required to be administered through IV root as per guidelines. The complainant has not produced any authority to establish the allegation that the patient was given excess injections carelessly and unnecessarily. The complainant also has got a case that intramuscular injection was given to the patient as intravenous, but there is no evidence to establish the same. The complainant alleged that the medicine heparin was not administered duly to the patient and which resulted dry gangrene to the right forearm of complainant. But the complainant has not produced any authority to substantiate that it was an indispensable medicine to treat the patient in the given situation of the complainant. The complainant further contended that there was discoloration noted by the nursing staff but there was no proper treatment given to the complainant on the basis of finding discoloration. But the opposite party submitted that the patient was attended and treated by Dr. Jasim and Dr. Paul and they diagnosed the condition of the patient and emergency fasciotomy was done to save the affected parts and started administration of heparin. Since fasciotomy was decided, there was no scope for Doppler study as the patient was in need of fasciotomy on an emergency basis and vessels were visualized directly. The opposite party has stated that Doppler study is a non-invasive technique for determining the blood flow velocity through blood vessels which is not treatment but a diagnostic device and in the case of complainant the study was not indicated as the patient showed absence pulsation with oedema and discoloration of medical aspect of hand which rather required fasciotomy on an emergent basis and the vessels visualized directly. But the patient developed dry gangrene due to vascular compromise and potentially life-threatening neurological disease, dehydrated state leading to thrombosis condition in blood vessel which are inherent in the disease process. According to the complainant, it was part of dry gangrene and the opposite party started to provide medicine for the same only on 05/03/2013 and so there is considerable delay in treating the complainant for gangrene ailment. The complainant further alleges the opposite party failed to conduct Doppler study prior to entering in to fasciotomy. Hence the allegation is that the opposite party failed to comply the pre-surgical procedures. The complainant has got a contention that the patient developed dry gangrene due to deficiency in treatment, lack of facilities in hospital, improper administration of medicines and failure to provide proper treatment and proper tests. But the complainant has not specifically mentioned what are the lack of facilities in the hospital and improper administration of medicines as well as non-providing proper treatment.
34. The complainant admitted before sixth opposite party hospital with a condition of dry gangrene on the right hand of the complainant extending up to the mid forearm with mummification of the fingers and palm. Considering the condition of the patient and the state of gangrene there was no chance of saving limb. The clinical management group meeting was held in sixth opposite party hospital with participation of experts from surgery, pediatric surgery, pediatrics and neonatology to discuss the case of the patient regarding possible, etiology, present status, and course of treatment. The conclusion was amputation un avoidable and to be on an emergency basis to save the life of patient. The wordings in the discharge summary that the condition of dry gangrene on the right hand extending up to the mid forearm with mummification of the fingers and palm, it appeared that there had chance to save the right forearm. But the condition was so bad nothing less than amputation was possible to save the life of the complainant at the time of appearing the complainant before fifth opposite party. It is hard to find lack of medical care and attention from the side of first opposite party. The patient was taken to the first opposite party in life threatening stage. But the first opposite party and a team of doctors were vigilant to provide treatment to the complainant. There were necessary lab tests done from second opposite party. There was sufficient medication also evident from the treatment records. Despite of all the efforts even after doing fasciotomy the gangrene was developed which ultimately resulted amputation of the right forearm of minor boy. No doubt the amputation of a limb that too at the age of 1 ½ years, certainly a lifelong bitter experience to the complainant as well as the parents. But alleging liability on the ground of medical negligence require a different consideration. There are certain relevant decisions from the apex court as well as from National Consumer Disputes Redressal Commission in the matter of medical negligence.
35. In the case of medical negligence, there should be specific allegation of medical negligence and that too be established through the expert evidence. The complainant herein has got number of allegations against the first and second opposite parties and there are no allegations against opposite parties 3 to 6. The complainant has deposed before the commission itself that there is no complaint against fifth opposite party. So, the grievance of the complainant is directed towards the first opposite party and the second opposite party under which the first opposite party is working. It can be seen that the complainant got admitted in the fourth opposite party hospital on 16/02/2013 with history of 3 days ailment. Ext. A1 treatment record from opposite party No.4 hospital reveals the condition of the minor boy. The boy was suffering from the ailment prior to three days admission before the 4th opposite party. So, in short, the boy was suffering the ailment for the last 6 days and due to none subsidizing the ailment the boy was taken to the first opposite party hospital on 19/02/2013 at about 10 pm. The treatment records produced from the second opposite party hospital reveals the treatment undergone there in by the complainant. The boy was treated at second opposite party hospital from 19/02/2013 to 13/03/2013. During this period the patient was given care by the team of doctors including first opposite party. But discoloration to the forearm subsequently led to detection of dry gangrene to the right forearm of the complainant. Then, there was request from the relatives of the patient and accordingly the complainant was taken to specialist hospital Ernakulum and then to MIMS hospital Calicut. The second opposite party hospital also had suggested amputation of right forearm as lifesaving procedure to the complainant in consultation with team of doctors, which was done from the sixth opposite party hospital.
36. Now the question arises whether the complainant side succeed in establishing medical negligence on the part of the first opposite party. The complainant has not examined an expert in the matter. The complainant side cited decision Krishna Rao Vs Nikhil Super specialty hospital and others (2010 SCR 1) in CIVIL appeal No.26/41 of 2010 to establish that expert evidence is not required in all medical negligence cases. It can be seen that if the negligence is on the side of a medical practitioner and if it is not apparent one, expert evidence is advisable. It may be mentioned here that the complainant had led no evidence of experts to prove the alleged medical negligence expect their own affidavit as laid in Bombay hospital and medical research Centre Vs Asha Jaiswal reported in 2021 SCC online SC 1149. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia as contended in Jacob Mathew Vs State of Punjab (2005) 6 SCC1. In this matter the allegation of administration of unnecessary medicines cannot be decided without an expert opinion. The issues also arises whether heparin administration was inevitable one or not and whether all the discolorations are to be treated symptom of gangrene and whether Doppler study is highly necessary before entering to fasciotomy. All these issues are to be ascertained through the expert opinion and medical authority. In the absence of such evidence, we cannot arrive a conclusion that the first opposite party was negligent in treating the complainant. The first opposite party treated the patient with due care and caution in accordance with accepted medical protocol as evident from treatment record, but failed to save the right palm of the minor boy which does not mean the treated doctor was negligent. So, we cannot find negligence on the side of opposite parties and so the complaint stands dismissed.
Dated this 28th day of February, 2023
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: PW1 & PW2
PW1: Mrs. Arifa, mother of the complainant.
PW2: Mr. Hiler, photographer.
Documents marked on the side of the complainant: Ext.A1to A51
Ext.A1: Photo copy of admission sheet issued by Nizar hospital, Valanchery dated
16/02/2013 to 19/02/2013.
Ext.A2: Copy of doctor’s order Nizar hospital Valanchery dated 16/02/2013.
Ext A3: Copy of nurse’s record from E.M.S .Memorial cooperative hospital,
Perinthalmanna dated 19/02/2013 (series)
Ext A4: Photocopy of doctors order sheet and progress note / E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013 series.
Ext A5: Copy of consultation notes /E.M.S .Memorial cooperative hospital,
Perinthalmanna dated 19/02/2013
Ext.A6 : Copy of General consent of patient / relative / E.M.S .Memorial cooperative
hospital, Perinthalmanna dated 19/02/2013.
Ext.A7: Copy of inpatient record /E.M.S Memorial cooperative hospital,
Perinthalmanna date of admission 19/02/2013/IP No,1213/018610/1
Ext A8: Copy of (Dangerous Ill List) DIL consent letter dated 19/02/2013/ E.M.S.
Memorial cooperative hospital, Perinthalmanna dated 19/02/2013 (series
0087 pages)
Ext A9: Copy of Paediatric case record E.M.S .Memorial cooperative hospital,
Perinthalmanna dated 19/02/2013.
Ext A10: Copy of Emergency department initial assessment /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013.
Ext.A11: Copy of BP chart /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013 (series)
Ext.A12: Intake and output record /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013.
Ext A13: Copy of temperature chart /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013.
Ext A14: Copy of pre anaesthesia record /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 24/02/2013.
Ext A15: Copy of surgical safety check list //E.M.S .Memorial
cooperative hospital, Perinthalmanna nil dated
Ext.A16: Copy of informed consent /E.M.S .Memorial
Co-operative hospital, Perinthalmanna dated 23/02/2013.
Ext.A17: Copy of relevant investigations nil dated.
Ext A18: Copy of informed consent /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 24/02/2013.
Ext A19: Copy of informed consent //E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 24/02/2013.
Ext A20: Copy of consent for receiving blood /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 25/02/2013.
Ext.A21: Consent for receiving blood //E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext.A22: Copy of Anaesthesia consent /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext A23: Copy of informed consent /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext A24: Copy of surgery consent/E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 20/02/2013.
Ext A25: Copy of operation record /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 24/02/2013.
Ext.A26: Copy of pre-operative checklist for surgical cases under anaesthesia//E.M.S.
Memorial cooperative hospital, Perinthalmanna dated 24/02/2013.
Ext.A27: Copy of post-operative monitoring charge /E.M.S .Memorial
Cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext A28: Copy of blood transfusion charge /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 21/02/2013.
Ext A29: Copy of pre anaesthesia record /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext A30: Copy of operation records /E.M.S .Memorial cooperative hospital,
Perinthalmanna dated 28/02/2013.
Ext.A31: Copy of pre operative check list for surgical cases under anaesthesia /E.M.S
Memorial cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext.A32: Copy of blood transfusion chart /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 28/02/2013.
Ext A33: Copy of anaesthesia record nil date
Ext A34: Medication chart /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013 up to 14/03/2013.
Ext A35: Nutritional assessment chart /E.M.S .Memorial
Cooperative hospital, Perinthalmanna dated 19/02/2013.
Ext.A36: Cross consultation /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013 to 13/03/2013
Ext.A37: Copy of diet monitoring chart /E.M.S .Memorial
cooperative hospital, Perinthalmanna dated 19/02/2013 to 07/03/2013.
Ext A38: Copy of treatment summary issued from MIMS hospital Govindhapuram
Dated 27/06/2013
Ext A39: Right upper limb anterior Doppler test report dated 14/03/2013.
Ext A40: Discharge summary issued from MIMS hospital Calicut
Ext.A41: Copy of discharge bill dated 27/03/2013.
Ext.A42: Copy of bill payment details dated 27/03/2013
Ext A:43 Copy of test results Nizar hospital – Laboratory, Valanchery dated
16/02/2013.
Ext A44: Test results Nizar hospital – Laboratory dated 17/02/2013
Ext A45: Copy of laboratory investigation reports (series) dated 02/03/2013
Ext.A46: MRI Scan report dated 24/02/2013.
Ext.A47: USG abdomen scan report dated 27/02/2013.
Ext A48: Card issued from specialists hospital Ernakulum, No. 124124.
Ext A49: Copy of medical bills series issued from EMS Hospital, Perinthalmanna.
Ext A50: Copy of photographs of complainant minor boy.
Ext A51: Copy of CD of photograph of minor boy.
Witness examined on the side of the opposite party: DW1
DW1: DR. Ramdas, E.M.S Memorial Co-operative Hospital, Perinthalmanna.
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Photo copy of case sheet from Nizar hospital, Valanchery OP No.82088-DOA
16/02/2013 DOD 19/02/2013 Case sheet of the patient / complainant
/1213/072454/19/02/2013.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
