BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1362/2008 against C.C.No.80/2006, DISTRICT FORUM-II,Krishna at Vijayawada.
Between
1.Dr.K.Vijaya,
Lakshmi Nursing Home,
Cherukupallivari Street,
Governorpet,
Vijayawada-520 002.
2. Dr.G.Lakshmi Prasad,
Lakshmi Nursing Home,
Cherukupallivari Street,,
Governorpet. …Appellants/
Opp.parties
And
Gummadi Sridhar,
S/o.G.Rama Sastrulu,
Properties,
R/o.Yelammaru Village,
Pedaparupudi Mandal,
Krishna District. …Respondent/
Complainant
Counsel for the Appellant : M/s. V.Gowrisankar Rao
Counsel for the respondent : M/s. D.Krishna Murthy
F.A.No.992/2009 against C.C.No.80/2006, DISTRICT FORUM-II,Krishna at Vijayawada.
Between
Gummadi Sridhar,
S/o.G.Rama Sastrulu,
R/o.Yelammaru Village,
Pedaparupudi Mandal,
Krishna District.
… Appellant/
Complainant
And
1.Dr.K.Vijaya Lakshmi Nursing Home,
Cherukupallivari Street,
Governorpet,
Vijayawada-520 002.
2. Dr.G.Lakshmi Prasad,
Lakshmi Nursing Home,
Cherukupallivari street,,
Governorpet.
Vijayawada -520 002. … Respondent/
Opp.parties
Counsel for the Appellant : M/s. D.Krishna Murthy
Counsel for the respondents : M/s.V.Gowrisankar Rao
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, HON’BLE MEMBER
TUESDAY, THE TWENTIETH DAY OF SEPTEMBER,
TWO THOUSAND ELEVEN.
(Typed to dictation of Smt.M.Shreesha, Hon’ble Member)
****
Aggrieved by the order in C.C.No.80/2006 on the file of District Forum-II, Krishna at Vijayawada, the opposite parties preferred F.A.No.1362/08 and complainant preferred F.A.No.992/09. As both these appeals arise out of a common complaint, they are being disposed of by this common order.
The brief facts as set out in the complaint are that the complainant and his wife along with their minor son by name Gummadi Kartheek who was suffering with severe stomach ache approached Dr.M.Srinivas on 5.3.2004 at Gudivada who examined the complainant’s son and referred him to Annapurna Multispeciality Hospital where the doctors examined him and took an X-ray and advised him to go to Vijayawada for obtaining KUB Scanning. Accordingly, the complainant visited the opp.parties hospital on 6.3.2004 and on their advise, admitted his son in the hospital of opposite parties. Opposite parties sent the complainant’s son to Apollo Diagnostics, Vijayawada for getting Ultrasound scan of the total abdomen and accordingly the patient was scanned on 6.3.2004 and a detailed scan report was submitted to the doctor. The said scan report revealed that the right kidney was affected with acute Pyelonephritic changes. The complainant submits that the patient complained with stomach ache with previous history of removal of appendix, symptoms and the history which led the doctors to conduct the abdominal operation on 6.3.2004 from which they could find only the adhesions formed due to previous operation which is of not serious nature. Without considering acute pyelonephritic problem of right kindly and without referring the boy to Urologist, the opp.parties conducted the operation which was unnecessary. The complainant submit that though the operation was conducted by opp.parties doctors on 6.3.2004 their son was treated as inpatient upto 13.3.2004 but the stomach ache was not cured. As the patient did not recover from severe pain, on repeated demands of the complainant, the opposite parties referred the patient to Dr.K.Prashanth Kumar, Prashanth Urology Centre, Viajyawada on 13.3.2004 where several medical tests and examinations are conducted and it is confirmed that the right kidney of the patient has completely failed.
Thereafter the complainant shifted his son to Aarif Nursing Home in Visakhapatnam on 14.3.2004 where he was examined clinically and operated. Subsequently he was shifted to St.Joseph’s Hospital, Visakhapatnam where the doctors did the operation and the right kidney of the complainant’s son was removed. The complainant spent Rs.85,000/- for the said operation. The complainant submits that due to negligence of opp.parties, his son lost his right kidney. The complainant submits that the opp.parties have carelessly and negligently diagnosed the disease of the patient as intestinal obstruction and conducted a wrong and improper operation by declaring that there was trouble in the intestines of the patient though in the scanning report of the patient it has been revealed and there are no intestinal obstructions. The complainant got issued a demand legal notice to the opposite parties on 20.6.2005 demanding an amount of Rs.15,00,000/- for which the opp.parties gave a reply dt. 8.7.2005 denying their liability to pay the said amount and also made frivolous allegations. Hence the complaint seeking direction to opp.parties to pay Rs.25,000/- towards medical expenses for the operation conducted by opp.parties, to pay Rs.85,000/- towards expenses incurred for the operation conducted by St.Joseph Hospital, Visakhapatnam, to pay Rs.6,50,000/- towards mental and physical suffering , to pay Rs.1,50,000/- towards medical treatment and fee to the opp.parties due to negligent medical treatment and wrong diagnosis made by the opp.parties, to pay Rs.5,80,000/- towards deficiency of service , to pay an amount o Rs.10,000/- towards costs of the complaint.
Opposite parties filed their version denying the allegations in the complaint and contending that they have after careful examination of the complainant’s son advised 1.X-ray of the abdomen,, 2.Ultra sound scan of abdomen, Blood examination, 4.Urine examination and the said investigations were done at private labs and the said reports revealed that the patient was suffering from Subacute intenstinal obstruction. The parents of the patient were advised that the child needs emergency operation to release the intestinal obstruction immediately, otherwise it would be dangerous to the life of the patient if the surgery is delayed. Accordingly with the consent of the parents of the patient Laparotomy was done on 7.3.2004 and it was found that intestines distended congested due to adhesion causing obstructions to the intestinal loops at the right ilias fossa with limp nodal enlargement, adhesion were released, the obstruction was released and bowels started collapsing and a lymph node was taken to conduct H.P.E. to exclude T.B. Abdomen and other causes. The patient withstood the operation and recovered well from anaesthesia within normal time. The opposite parties submit that on the same day of operation, on the request of the complainant they have handed over scan, x-ray and other reports to him and on 13.3.2004 the patient was discharged with a reference letter to Dr.Prasanth Kumar, M.Ch.. The parents of the patient consulted the said doctor who advised further tests and suggested Nephrectomy as the kidney was pyelonphretic and not functioning. The patient came back and informed the opp.parties that they were taking the patient to K.G.H., Visakhapatnam. On 23.6.2004 the complainant came to opp.party no. 1 and requested to give the summary of the case for the purpose of health insurance and informed that the boy was alright after nephrectomy . Had the opp.parties not conducted the Laparotomy to release the adhesion in the first instance, the patient would have died immediately. The complainant has deliberately suppressed the X-ray of the abdomen which discloses the diagnosis of intestinal obstruction. The opp.parties further submit that the consent letter given on 6.3.2004 by the parents and relatives of the patient clearly discloses that the opp.parties have informed them that the right kidney had phyelonephrils and the patient needs to undergo treatment for that disease. Opp.parties submit that the complaint is barred by limitation and the Dist.Forum has no jurisdiction and prayed for dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A32, B1 to B8 and Ex.X1 and pleadings put forward allowed the complaint in part directing opp.parties to pay an amount of Rs.1 lakh towards medical expenses and compensation to the complainant . The complainant is entitled to costs of Rs.2,000/- .
The brief point that falls for consideration is whether there is any deficiency in service on behalf of appellants/opp.parties in
a) Negligently treating the patient which necessitated further operations?
b) Not referring the patient to Urologist for a period of one week i.e. from 6.3.2004 to 13.3.2004?
It is the complainant’s case that his minor son was suffering from severe stomach ache and approached Dr.M.Srinivas on 5.3.04 and this doctor advised them to take X-Ray at Annapurna Multispeciality Hospital (Ex.A1) where he also underwent blood and urine tests Ex.A2 and A3 where he was once again advised to go to Vijayawada for obtaining KUB Scanning. On their advise the complainant visited opp.party’s hospital on 6.3.2004 as evidenced under Ex.A4 prescription notes of the opposite parties and ultra sound scan was done on 6.3.2004 (A5) and the following impression was noted:
“Right kidney with acute pyelonephritic changes with reduced cortical thickness with gross amount of sediment collection in the collecting system. Others normal.”
It is the complainant’s case that the patient had previous history of appendicitis on 24.4.2001 which led the doctors to perform an abdominal operation and only adhesions due to previous operation was found which is of not of serious nature. The learned counsel for the complainant contended that this abdominal operation was conducted unwantedly and valuable 8 days was lost and that opposite parties did not take into consideration Ex.A5 Ultrasound Scan Report and that the Urologist was not consulted for a period of one week till 13.3.04 as a result of which the patient lost her right kidney and therefore he is entitled for Rs.15 lakhs as compensation.
The learned counsel for the opposite parties 1 and 2 contended that the patient was aged 8 years and was passing white coloured urine since 5 years and was suffering from abdominal pain for the same period and also underwent appendectomy one year ago. The patient had severe vomitings and constipation with fever and abdominal pain for two days. The opp.parties examined the X-ray, ultrasound scan, blood and urine reports and diagnosed the patient to be suffering from acute Subcutaneous Intestinal obstruction because of presence of distended loop of intestine and pyelonephsitis to the right kidney and advised the patient’s parents that the child needed emergency operation to release intestinal obstruction immediately and the kidney problem could wait, since it is a chronic problem. Intestinal obstruction surgery was done as evidenced under Ex.A4 and adhesions released and then on 13.3.2004 the case was referred to Urologist for further management. The learned counsel for the opp.parties contended that the scan cannot diagnose the intestinal obstruction but it is X-Ray which could reveal the same. Intestines distended and were congested due to adhesions causing obstructions to the intestinal loops at right ilias fossa with Lymph Node Enlargement. Lymph node was taken to conduct Histopathology examination to exclude TB and other causes. The patient withstood the operation and recovered well and was discharged on 13.3.04 with a referral letter to Dr.Prasanth Kumar for further kidney management. The complainant thereafter informed the opp. parties that the patient was being taken to KGH , Visakhapatnam to consult the Urologist. Therefore it is the main contention of opp.parties that in order to save the patient laparotomy was done to release intestinal obstruction the biopsy was intended to find out cause of intestinal obstruction and therefore there is no negligence on their behalf.
The learned counsel for the complainant contended in the instant case it is not required that there should be an expert opinion as things seeks for themselves. He relied on the judgement of Hon’ble Supreme Court in V.Kishan Rao vs. Nikhil Super Speciality Hospital and anr. wherein it is held as follows:
“In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.”
The Apex Court in the very same judgement has also observed as follows:
“When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated.”
However this instant case is not being dismissed merely as expert opinion has not been filed. The complainant in his deposition admitted that the doctors informed him about the problem of kidney of his minor son but denies that they advised him to go to Urologist and submits that the operation was successful and that he had taken his son after discharge to Dr.Prasanth Kumar, Urologist. Ex.A12 is the prescription of Dr.Ch.Subba Rao and Ex.A14 is the DTPA Renogram dt.18.3.04 of Seven Hills Hospital, Visakhapatnam which shows that the right kidney has parenchymal disease. Ex.A15 is the Discharge Summary of St.Josephs Hospital which shows that date of admission 23.3.2004 and date of discharge as 27.3.04. The Discharge Summary Ex.A15 or the reports taken prior to this date or prescriptions Ex.A12 do not evidence septicemia. The prescription dt.31.7.04, Ex.A16 is a letter written by Ch.Subba Rao which states that the kidney infection led to septicemia on 14.3.04 and that he was operated on 23.3.04. This letter also does not evidence that the operation conducted by opposite party on 7.3.04 has led to septicemia. Even the prescription Ex.A12 subsequent to the operation by opp.parties does not talk of septicemia. Even in the complaint, the complainant has only said the unwanted operation ‘may have led to septicemia ‘ but did not file any documentary evidence to substantiate his case that the first operation led to septicemia. The complainant denies that they have suppressed X-ray.
The National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark Judgements on Consumer Protection P-410 held as follows:
“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise 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 what 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”
In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”
“The approach of the courts is to require that professional
men should possess a certain minimum degree of competence
and that they should exercise reasonable care in the discharge
of their duties. In general, a professional man owns to his client
a duty in tort as well as in contract to exercise reasonable care in
giving advise or performing services”.
Supreme Court then opined as under:
“The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.
In Dr.Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr. reported in (1969) I SCR 2006, the Apex Court discussed the “duty of care” a doctor should undertake as follows:
a) A duty of care in deciding whether to undertake the case
b) A duty of care in deciding what treatment to be given
c) A duty of care in the administration of that treatment
In Bolam v. Friern Hospital Management Committee, WLR at p.586 it is held as follows:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
We are of the considered view that the contention of the complainant that operation was unwantedly performed is without any basis. It is also not the complainant’s case that the operation that has been conducted on 6.3.04 led to the kidney problem. The learned counsel for the complainant contended that one week time was lost as the case was not referred to Urologist till 13.3.04. While the doctor deposed that it is an emergency laparotomy which is conducted to release intestinal obstruction, and that they waited till the patient recovered before referring him to Urologist, the complainant did not file any medical literature to establish their case that the first operation was unnecessarily conducted or one weeks delay in referring to the Urologist has led to Nephrectomy i.e. removal of the kidney. The deposition of opp.parties shows that intestinal obstruction can be seen only on X-ray and that the operation was conducted only for removing intestinal obstruction and it had nothing to do with the kidney problem. It is also an admitted fact that the complainant has visited Dr.Prasanth Kumar, Urologist. We also rely on the deposition of Dr.Venkat Rao who had seen the patient on 5.3.04 and clearly submitted that on his clinical examination and reading of X-ray he noticed ‘mass on right iliac fossa with doubt of intusception’ and also noticed kidney problem because of change in the urine colour. The deposition of RW.5 shows that an X-ray was taken on 5.3.04 (also filed record of the diagnostic centre as Ex.X1). Ex.B1 which is prescription given by opp.parties dt.6.3.04 shows the Case History of the patient. Ex.B2 is the Case Sheet stating the history of appendectomy, different coloured urine, sub cutaneous obstruction and advise for laparotomy. The lymph nodes were also sent for biopsy. Towards the end of the Case Sheet the patient was also advised to meet the Urologist. We are of the considered view that the duty of care expected of a reasonable degree has been exercised by the opp.parties and they have acted as per standards of normal medical parlance.
Keeping in view the afore mentioned judgements and reasons, we are of the considered view that there is no medical negligence on behalf of the opp.parties either in conducting operation or in the diagnosis and treatment of the patient.
Hence appeal F.A.No.1362/08 filed by the opp.parties is allowed and the order of District Forum is set aside. Appeal F.A.No.992/09 filed by the complainant is dismissed and consequently the complaint is dismissed. No costs.
Sd./PRESIDENT
Sd./MEMBER
Dt. 20.9.2011
Pm*
