DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 20^th day of September 2013 

Present: Smt.Seena.H, President

            : Smt.Preetha.G.Nair,   Member

            :  Smt.Bhanumathi.A.K, Member                 Date of Filing : 15/10/2012

 

1.Murugan,

 S/o.Kuppan,

 Kunduparambil Devaki Bhavanam,

 Mankurissy (PO),

 Parali via,

 Palakkad Taluk

 

2.Devaki.K.V.

(By Adv.John John)                                                -                  Complainants

        Vs 

Dr.C.K.Premkumar M.B.B.S. M.S.(Surgeon),

CKJ Clinic,

Tailor Street,

Palakkad Taluk

By Adv.V.K.Venugopal)                                  -                  Opposite party

 

 

 

Order by Smt.SEENA.H, PRESIDENT

 

Complainant’s son was admitted in opposite party clinic on account of stomach pain on 24/07/12. Tests were conducted and it was confirmed that the patient was suffering from appendicitis. Doctor instructed emergent surgery. Surgery was done on the same day. After surgery, the patient’s stomach pain increased and also he felt uneasiness. When the fact was brought to the notice of opposite party, it was informed that is  a formal one and nothing to worry. The patient remained inpatient there  till 26/07/12. The patient’s urine was totally blocked for all these three days. Opposite party has not taken any step to cure the same. On 26/07/2012 opposite party informed the complainant that one more emergent operation is required and insisted the complainant to take the patient to Malabar Hospital, Palakkad. The doctors at the Malabar Hospital after examining the patient with the assistance of opposite party informed the complainant that they are helpless at this belated stage. From there the patient was referred to Jubilee Mission Hospital, Thrissur on the same day. Dr.Jagadheesh attached to the said hospital after examination, undergoing CT scan and perusing report advised  emergent surgery. The patient underwent another surgery at Jubilee Mission Hospital. After surgery the  Doctor informed the complainant that there was negligence on the part of the opposite party during the surgery for appendicitis and that the patient’s   life is in danger. The patient was admitted in MICU till 2/08/2012. On 2/08/2012, the patient died. The doctors  of the Jubilee Mission Hospital informed that the reason for the death of the complainant’s son is the negligence and carelessness on the part of the opposite party during the surgery of appendicitis.

It is learnt that due to the carelessness of the opposite party in conducting the surgery, complainant’s son got leakage in his stomach which resulted in his death. According to the complainant, his son’s life could have been saved  if the opposite party had taken appropriate steps immediately after the surgery. Opposite party has retained the patient at the opposite party hospital for illegal enrichment.

 

The death of the  complainant’s  son has resulted in great mental shock to both complainants.  He was an educated boy and a bright future was awaiting him. Further complainants were constrained to repay the loan availed for his son for educational purpose. Complainants claims an amount of Rs.10,000,00/- as compensation for the negligence on the part of opposite party.

 

The complainant’s son came to opposite party clinic on 24/07/12 with abdominal pain of two days duration. Opposite party examined the  patient and clinically diagnosed to have signs of acute appendicitis. Blood investigation and ultra sound scanning was done. The USG report revealed acute appendicitis and hence posted for emergent appendisectomy. The patient after undergoing all necessary pre-operative check ups and anaesthetic evaluation underwent appendisectomy operation. The patient was operated through Mc.Burney’s incision and the appendix which was found inflamed was excised and sent for histopathology. There was no peritoneal soiling or ascitis intra operatively. The wound was closed in layers and the patient was shifted to post operative recovery room and was kept under close observation and monitoring. On 25/07/12 the patient’s condition was stable and IV fluids, antibiotics and analgesics continued. His vital parameters remained stable except for difficulty in urination and hence he was catheterized with disposable catheter and    500 ml of urine cleared out and the catheter was removed. Since the patient again complained difficulty to pass urine he was put on permanent catheterization & he remained comfortable thereafter. His renal  parameters were checked and found to be within normal limits.  On 26/07/2012 at about 8.30 a.m. the patient complained pain in upper abdomen. Opposite party immediately attended the patient and found to have guarding  and tenderness over upper abdomen with suspected obliteration of liver dullness. He was subjected to peritoneal aspiration and underwent USG examination. The USG examination revealed fluid in the peritoneal cavity possibly due to duodenal ulcer perforation/gastric perforation. Opposite party advised the need for an emergency laparotomy and planned to shift the patient immediately to Malabar Hospital for emergency laparotomy where better facility exists. The patient was shifted to Malabar Hospital in a stable condition and posted for laparotomy and underwent all necessary pre-operative investigation and anaesthetic check ups by 10.30 a.m. The relatives gave their written consent as well, but later they changed their mind. The patient was discharged on request. It is learned that the patient was taken to Jubilee Mission Hospital and underwent laparotomy there and later was succumbed to death. The death of the patient was not caused due to any act or omission on the part of the opposite party as the patient was given timely treatment and care as per accepted medical practice  and there was no negligence or carelessness on the part of the opposite party at any point of time in the treatment of the patient. The opposite party had properly diagnosed the disease condition of the patient through clinical examination and confirmed through USG examination and immediate appendisectomy was done as a life saving measure. The appendisectomy operation was done through Mc.Burney’s incision which would not cause stomach injury as alleged in the complaint as stomach is situated in higher up level, below the chest cavity in the abdomen and the incision was done in the lower abdomen. The acute ulceration of the patient could most probably due to surgical stress induced by drugs given to tackle the primary condition or a pre-existing ulcer which might have been masked by the appendicular pain. Opposite party has timely detected hollow viscous perforation and immediately posted for emergency laparotomy at Malabar Hospital. But the relatives got the patient discharged against medical advice and thereby surgical intervention was further delayed. According to opposite party there is no negligence or carelessness on the part of the opposite party.

 

The evidence adduced by the parties consists of their respective chief affidavits, Ext.A1 to A17 and Ext.B1 to B8. The treated doctor at Jubilee Mission Hospital examined as PW1. The administrator of Malabar Hospital examined as DW1. Opposite party cross examined as DW2.

The issues for consideration are

1. Whether there is any negligence on the part of opposite party ?

2. If so, what is the relief and cost entitled to the complainant ?

 

 

 

The allegation of medical negligence leveled against the opposite party can be summarized as follows:

1.After surgery the patient’s urine was totally blocked and the opposite

 party doctor has not taken any steps to manage the same.

 

2. The negligence and carelessness of the opposite party in conducting

   the surgery has caused leakage in the stomach of the patient  which 

  ultimately resulted in his death. The doctor  attached to the Jubilee

   Mission Hospital has also opined the same.

3. Opposite party has not taken appropriate steps immediately after the

   surgery to save the life of the complainant.

The opposite party’s stand to the above allegations are as follows:

 

1.    After surgery  the patient was shifted to post operative recovery room and was kept under close observation and monitoring. On 25/07/12 his vital parameters remained stable except for difficulty in urination and hence he was catheterized with disposable catheter and 500 ml of urine cleared out and the catheter removed. Since the patient again complained difficulty to pass urine, he was put on permanent catheterization and he remained comfortable thereafter. His renal parameters were checked and found to be within normal limits.

2.    The patient after undergoing all necessary pre-operative checkups and anaesthetic evaluation underwent appendisectomy operation.  The patient was operated through Mc.Burney’s incision. There was no peritoneal soiling or ascitis intra operatively. The wound was closed in layers and the patient was shifted to post operative ward. According to opposite party, Mc.Burney’s incision will not cause any stomach injury as the stomach is situated in a higher up level and the incision was done in the lower abdomen. The acute ulceration of the patient could most probably due to surgical stress induced by drugs to tackle the primary conditions or a pre existing ulcer which might have been marked by the appendicular pain.

3.    The third allegation is that opposite party has not taken appropriate steps immediately after the surgery to save the life of the patient. Opposite party stated that after the surgery, on 26/7/12 when the patient complained pain in upper abdomen opposite party immediately attended the patient and found to have guarding and tenderness over  upper abdomen with suspected obliteration  of lever dullness. He was subjected to peritoneal aspiration and underwent USG examination. The USG examination revealed fluid in the peritoneal cavity possibly due to ulcer  perforation/gastric perforation. Opposite party advised the need for an emergency laparotomy and planned to shift the patient to Malabar hospital where better facility exists to conduct laparotomy. The patient was shifted to Malabar Hospital in a stable condition, underwent all necessary pre-operative investigations and anaesthetic check up by 10.30 am for conducting laparotomy. But the relatives got the patient discharged against medical advice there by delayed surgical intervention.

      We heard both parties and has gone through the entire evidence on record.

Before analyzing the evidence on record adduced by the parties to substantiate the rival contentions, it is necessary to look into the principles laid down by the apex court to determine medical negligence on the part of the doctor. The well established ‘BOLAM TEST’ laid down in Bolam V Friern Hospital Management Committee was followed  by our apex court in a pletheora of cases.

       Accordingly a doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical man skilled in that particular act.

 

       It is settled position of law that the amount of skill to be possessed by a medical professional is neither the very highest nor the very low degree, but a reasonable degree of skill knowledge and reasonable degree of care.

 

       Ext.B2 is the case sheet of the patient treated  at opposite party hospital.   Complainant has no allegation that appendisectomy operation is an unwarranted one. It is specifically seen recorded in Ext.B2 that on 25/07/12 at 5.45 a.m catheterization done and 500 ml urine drained. Again at 10 pm it is again recorded 200 ml urine drained. Ext.A1 series the pharmacy bill dated 25/7/12 also supports the say of the opposite party. Ext.A1 series shows purchase of urethral catheter. The stand of the   complainant that urine was totally blocked for three days and opposite party did not do anything  to manage the same is found to be incorrect.

 

       PW1 is the doctor who according to the complainant has opined that the negligence and carelessness of the opposite party in conducting  the surgery has resulted in the death of the patient. Now we will look into the relevant portion of the deposition of PW1.

“The patient was brought with severe abdominal pain. There was history of surgery done outside. There was suspicion of appendicular stump leak.

 

Further stated

 

‘Report suggested appendicular stumpleak. There was no other wound seen other than the one caused by the surgery of appendicitis. Again it is stated that, 

       “After surgery no stump leak was seen it was gastric perforation”.

The reason for death as per Ext.A6 is Renal failure, sepsis, cardiorespiratory arrest.

       As per PW1, there was gastric perforation peritonitis. That may be reason of sepsis. According to him gastric perforation would have caused renal failure.

PW1 further states that

     “Gastric perforation may be due to several reasons like hyper acidity, ulcer etc.”

       During cross examination, PW1 deposed incision was done at right lower abdomen when the surgery for appendicitis is done by open method, he cannot visualize the stomach. There is chance of occurrence of gastric perforation after surgery also.

       On the whole reading of the deposition of PW1, we do not find anything to substantiate the medical negligence alleged while conducting the surgery.

       Now the question is whether the opposite party is negligent in providing pre-operative care to the patient. PW1 has deposed regarding the procedure to be followed after surgery.

       “After any surgery patient will be kept for some time nil by mouth, then prescribe antibiotics, then analysis, provide anti acid drugs and will supplement by intravenous fluids”.

 

       Complainant has no specific case that these procedures were not followed. Though the complainant has not raised any allegation as to the facilities in the opposite party clinic and the direct monitoring of the opposite party either in the complaint or the affidavit, it was vehementally argued. The relevant portion of the deposition of DW2 is noted below:

      Name of my institution is CKJ clinic. It is actually a hospital but called clinic. I know the difference between clinic and a hospital. The difference is in the facilities available. It is not correct to say that in a clinic the facilities will be limited and in a hospital facilities will be larger. In my clinic there is only one department i.e, surgery. I am the only doctor there. Laboratory, scanning, pharmacy, operation theatre (fully equipped) post operative monitoring equipments etc are available there. I am working in two other Hospitals also. Those are Malabar hospital and Kerala Nursing Home, Palakkad. I have no fixed timings in those two hospitals. When patients are admitted there I attend them twice a day. Full fledged  intensive care unit is the only additional facility compared to my hospital available in the Malabar Hospital.

      

       DW2 has clearly stated that his clinic is fully equipped in conducting a surgery. Simply because he attends two other hospital in the same district, he cannot be made negligent. It is relevant to note here that nowhere in the complaint, lies any allegation that the doctor has not attended to or the doctor was not available any particular situation. Complainant relying  on Savita Garg Vs.Director, National Heart Institute (2004) 8SCC56, has argued for the position that “once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence.”

      On the available evidence on record, it cannot be said that the complainant has adduced evidence to show that the opposite party is negligent so as to shift the burden to opposite party.

 

       Again on 26/7/12 when the complainant complained abdominal pain after examination, opposite party has suggested laparotomy. Necessary pre-operative measures were taken from Malabar Hospital and posted for surgery.

Ext.A17 series shows that the patient was discharged at the request of the parents. PW1 the treated doctor at the Jubilee Mission Hospital has  explained the condition of the patient when brought and the procedures done as follows:

      Patient was brought with severe abdominal pain. There was history of surgery done outside. There was suspicion  of apendicular stump leak. Emergency surgery was being planned.

 

 

Further in the cross PW1 deposed

      As per the referral letter in Ext.A17 series Doctor at Malabar Hospital has suggested for a surgery. They could have suspected peritonitis. Peritonitis is a surgical emergency. It would have worsened by time.

Both the opposite party and PW1 has suggested emergent surgery. So it cannot be said that opposite party went wrong in dealing with the subsequent situations.

The oral and documentary evidence on record will go on to show that the complainant has failed to prove negligence and carelessness on the part of opposite party.

 

      In the result complaint dismissed.

 

Pronounced in the open court on this the 20^th   day of September  2013.   

    Sd/-

Seena H

President

   Sd/-

Preetha G Nair

Member

   Sd/-

Bhanumathi.A.K.

Member

 

 

 

Ext.A1 series – Medical Bills    31 nos.

Ext.A2 – Cash receipt dated 29/7/12 for Rs.28,345/-     

Ext.A3 – Cash receipt dated 29/7/12 for Rs.11,884/-

Ext.A4 – Biopsy / Cytology report (photocopy)

Ext.A5 series –  Lab Report 14 nos.

Ext.A6 –  Certificate dated 2/8/12 (Photocopy)

Ext.A7 – CT Scan report (Photocopy)

Ext.A8 – Ultra Sonogram (Photocopy)

Ext.A9 series –  Lab reports 4 nos.

Ext.A10 series –  Cash bills 2 nos.

Ext.A11 –  Hall ticket for KPSC Examination

Ext.A12 –  Registration slip

Ext.A13 –  Candidate PSC Online registration details

Ext.A14 –  Certificate dtd.24/09/12 of SBT Shoranur Branch

Ext.A15 –  X-ray of abdomen

Ext.A16 – CT Film

Ext.A17 series – Treatment record of Vishnu from Malabar Hospital

 

 

Ext.B1 series – Case sheet of Vishnu

Ext.B2 - Case Sheet in respect of Vishnu, S/o.Murugan kept with opposite party  

            (original) dtd.24/7/12

Ext.B3 – Cash bill from CKJ clinic in respect of Vishnu, S/o.Murugan (original)

            dtd.25/7/12

Ext.B4 – ECG Lab Report in respect of Vishnu, S/o.Murugan (original)

Ext.B5 – Biopsy/Cytology report in respect of Vishnu, S/o.Murugan (original)

            from DDRC SRL Diagnostic Services dated 30/7/12

Ext.B6 – Diagnostic Lab report in respect of Vishnu, S/o.Murugan (original) 

            from CKJ Clinic dtd.26/7/12

Ext.B7 –Ultrasonogram report in respect of Vishnu, S/o.Murugan(original) 

            dtd.24/7/12

Ext.B8 – Prescription for emergency USG for Vishnu by Dr.C.K.Premkumar.

 

 

PW1 – Jagadeesh

 

DW1 – Thachatt Sasindran

DW2 – Dr.Prem Kumar

 

No cost allowed.