PER S.K. NAIK, MEMBER This appeal is directed against the order dated 5.8.2005 passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ‘State Commission’) vide which complaint filed by Smt.Jayalakshmi alongwith her husband and minor daughter alleging medical negligence against respondent No.1 – HOSMAT Hospital and its doctors – respondent Nos. 2 to 4 was dismissed. The case as made out by the appellant/complainant is that complainant No. 1 – Smt. Jayalakshmi had a fall/slip in her house on 10.9.1997 resulting in a fracture on her right leg. She was taken to HOSMAT Orthopaedic Hospital – respondent No.1 and admitted the same day. She was hospitalized there until 24.9.1997. The respondents decided to conduct surgery on 18.9.1997, knowing fully well that she was diabetic. On a previous occasion, the General Physician – Dr.Anand Rao – respondent/ opposite party No.4 had suggested that until the sugar level is controlled, it is not advisable to undertake the surgery. On the day of the operation i.e. on 18.9.1997, no clearance had been obtained from the said physician. It has been alleged that the surgery was conducted with undue haste without monitoring and bringing down the blood sugar level to normal standard. The surgery conducted was not successful since the failure of the plate which was inserted in order to keep alignment of the fractured bone straight gave rise to complications resulting in total uneasiness, breathlessness shooting pain etc. The wound did not heal. The patient, however, was discharged even though she had not fully recovered. Since, there was no relief and improvement in the condition of the patient, she was again admitted to the hospital on 8.10.1997 when the doctors removed the plate inserted during the first surgery but there was no relief. Subsequently, When the husband of the appellant/complainant No.1 approached the doctors in Mallya Hospital, it was found that the patient had developed gangrene on the operated part of the leg and advised amputation to prevent further damage. The complainant/ appellants allege that, in the opinion of Mallya Hospital Authorities, it was not appropriate for respondent/opposite party No.1 – hospital to have taken the risk of conducting a surgery when the patient was found to be diabetic until the sugar level had been controlled. The complainant had no option but to agree to get her leg amputated. Soon after amputation, the wound had healed but at the cost of the patient losing her right leg below the knee level. It was alleged in the complaint that the respondents/opposite parties have been grossly negligent, firstly on account of undertaking the surgery with undue haste and secondly against the normally accepted medical procedure of awaiting the blood sugar level to be properly monitored and controlled so as to prevent any chance of infection of the wound after the surgery. Holding the respondents/ opposite parties totally careless, indifferent and completely negligent in her treatment, a claim of Rs.7,81,955/- on various counts as stated in the complaint was prayed to be awarded. Respondents/opposite parties contested the complaint. Written version was filed by respondent/opposite party No.1 which was adopted by two of their doctors ; respondent/opposite party No.2 and 3. Respondent/opposite party No.4 – Dr.Anand Rao, however, filed a separate version. It was stated by respondent/opposite party No.1 – hospital that the patient was admitted as a case of fracture of lower ¼ right leg TIBIA and FIBULA. She was a diabetic patient with BP 170/100 mmHg. It was further admitted that she was a known diabetic for last 10 years and respondent/opposite party No.4 – Dr.Anand Rao, physician on 10.9.1997 had suggested to postpone the surgery till diabetes and hypertension are controlled. The surgery accordingly was postponed. According to them, the patient suddenly developed breathlessness on 12.9.1998 and had to be treated with oxygen inhalation, drugs and injections were also given and cardiac monitor was done. The patient was shifted to ICU on 16.9.1997. They contend that only on 17.9.1997, she was posted for fixing of external fixator on the fracture of TIBIA & FIBULA. As per practice, external fixator was fixed to the fractured site. There was no incision to the patient. It was not an open surgery. The procedure was adopted to ensure that the patient moves around so as to prevent bed sores, formation of blood clot and to control diabetes. The patient was given IV Fluid, Dextrosaline in the Operation Theatre and the patient was kept nil orally and morning insulin was not given to prevent any infection. On 17.9.1997, echo of heart was done at Elbit and it was found normal. Patient was discharged on 24.9.1997. According to them, there was no infection in the pin track and diabetes was under control. She was advised salt restrictions, diabetic diet, medication and advised not to put weight on the right leg and for taking care of pin track using spirit swabs, with advice to continue antibiotic. The opposite parties in their written version have stated that the patient was negligent in not following the advice nor did she keep the appointments. Subsequently when she was admitted for the second time on 8.10.1997 with the complaint of pain at the site of fracture, they noticed infection in the pin track. While all efforts were made to control infection, it was too late to reverse the spread of infection which worsened with associated diabetic gangrene. Since the damage was irreversible, she was advised amputation of the right leg but the complainants took her away against medical advice. The treatment given to the patient was as per medical norms and full care had been taken to advise the patient with regard to post operative requirements which she failed to adopt. The opposite parties, therefore, have denied that there has been any negligence on their part and have submitted that the complaint be dismissed. Dr.Anand Rao, respondent/opposite party No.4 in his separate written version has submitted that his role in the entire episode was very limited as he was temporarily visiting opposite party No.1 – hospital only for two months from July to Sept. and had left the hospital thereafter. He had rendered correct medical advice in advising the postponement of the surgery until sugar was controlled, when the patient was referred to him on 10.9.1997. Thereafter, he had no role to play and he has been unnecessarily dragged to face the litigation. There is absolutely no fault, imperfection, short coming or any inadequacy in the quality, nature and manner of performance of his duties and services. He has submitted that there was no question of joint and several liability as far as he is concerned and has prayed that the complaint qua him be dismissed. Parties thereafter filed their respective evidence which included Exb.C.1 to C39 apart from the affidavit of complainant No.2. Opposite parties also filed Exb.R1 to R3 and filed the affidavits of Director of the Hospital and that of doctors – respondent/opposite party No.2 to 4. Opportunity to cross examination also was afforded to the parties. The State Commission, on appreciation of the evidence and on hearing the learned counsel for the parties, dismissed the complaint ; holding firstly that the complainant did not follow the instructions/advice given to her after the operation at the time of discharge from the hospital and secondly she failed to report on 29.9.1997 and 3.10.1997 for review. The State Commission has also opined that the delay in the approach of the patient and failure to follow the advise of the opposite parties, are the main cause for the complications which resulted in the amputation of the right leg. State Commission also found that the discrepancy in adopting the procedure in fixing the external fixator even when the diabetes was not under control was not fatal as whatever action was taken by the opposite parties was in the interest of the patient. It was further held that undertaking the surgery even when the blood sugar of the patient was not controlled, did not in any way affect the case, as in such cases in the interest of the patient in fixing the external fixator at the fracture site was a must. It has further been stated in the order of the State Commission that the question of incision did not arise in such a case and, therefore, chance of infection was remote. The State Commission has finally laid the blame on the complainant by stating that the delay by the patient in approaching the opposite parties for review and her failure to keep the pin track clean with swab resulted in the development of gangrene. During the pendency of the complainant before the State Commission, appellant/complainant No.1 – Smt.Jayalakshmi expired and the complaint is being pursued by her husband - appellant/complainant No.2 and her minor daughter -appellant/complainant No.3. Aggrieved with the dismissal of their complaint by the State Commission, as already stated above that this appeal has been filed. Appellant/complainant No.2 has appeared in person and argued his case while Shri Mohd.Sheriff has appeared on behalf of respondent/opposite party Nos.1 to 3 while respondent/opposite party No.4, despite due notice has failed to put in appearance. Appellant/complainant No.2 – Shri Chinna Narayana Swami, husband of the deceased has assailed the order of the State Commission contending that the State Commission has failed to appreciate that the facts of the case, despite attempts by the opposite parties to manipulate the medical records clearly prove that respondent/opposite party No.1 to 3, without controlling and awaiting for the blood sugar level and high blood pressure of the patient to be controlled and brought down to optimal level to render the patient fit for operation ; were more anxious to undertake the surgery ; that too when the patient on 12.9.1998 had developed breathlessness and cardiac problem and had to be shifted to ICU where she remained until 16.9.1997. While they wrongly opted to adopt the external fixator method, their negligence has been compounded by the fact that no proper control and monitoring of blood sugar level was carried out during the post hospitalization period until 24.9.1997 and the patient was discharged even though she had not fully recovered. Referring to the medical records (page 39 of the paper book), he has alleged that no test for the blood sugar was done on 18.9.1997 when the operation was conducted. Since the blood sugar level on 17.9.1997 i.e. a day before the operation and on 19.9.1997, a day after the operation reflect abnormal high reading of 320 mg/dl and 266 mg/dl respectively as against the normal 70-80 mg/dl, he submits that the patient was not at all fit for the operation. He further stated that the extra-ordinary keenness of respondent/opposite party No.1 to 3 to perform the operation on the very next day of the patient’s admission i.e. on 11.9.1997 is evident from the records. The patient would have been operated on that day but for the opinion expressed by respondent/opposite party No.4 – Dr.Anand Rao who advised postponement of the surgery till the diabetic and hypertension was controlled. Subsequently, the surgeon did not bother to obtain any clearance from the General Physician with regard to the blood sugar status of the patient and conducted the surgery on her. It was in this background that the patient developed gangrene on the site where the pin holes had been drilled. The complainant, therefore, contends that the State Commission has taken a completely perverse view in holding the complainant responsible and absolving the respondent of any liability. Learned counsel for the respondent/opposite party No.1 to 3 has very pains takingly argued that there was no negligence on part of the opposite parties. According to him, no operation as such was conducted on the patient and only external fixator were fixed as the patient was diabetic and as per practice, this procedure was adopted to ensure that the patient was in a position to move around so as to prevent bed sores, formation of blood clot etc. According to him, it was not an open surgery. On the point of the development of the gangrene at the site of the wound, learned counsel submits that when the patient was discharged on 24.9.1997, there was no infection in the pin track and the diabetes was under control. She was advised salt restrictions, diabetic diet and prescribed some antibiotic while taking care of the pin track using spirit swabs. The patient, however, did not follow the advice and had been negligent. Further, she did not report for review of the wound as advised and had reported again on 8.10.1997 complaining of pain at the site of the fracture when she had to be readmitted. All attempts were made to control the infection but due to the delay in seeking the medical help, the infection worsened with associated diabetic gangrene where after there was no option but to amputate the right leg. The patient, however, was taken away against the medical advice. Contending that the complainant has neither produced any expert evidence nor has he supported his contentions with any medical literature, the counsel submits that the hospital being a renowned Orthopaedic hospital and operating surgeon being an experienced well qualified Orthopaedic surgeon, there was no question of any negligence or deficiency of service and the complaint has been rightly dismissed by the State Commission which needs no interference in appeal. Since, the complainant had made certain averments with regard to the manipulation and tampering of records by the opposite parties, we summoned the original medical records of the case from the hospital. We have carefully perused the said documents and we have also heard the appellant/complainant No.2 who has appeared in person and argued his case at length as also learned counsel for the respondent/opposite party Nos.1 to 3. The first point to be considered is whether the patient who had suffered a fracture of lower ¼ right leg of TIBIA and FIBULA due to a fall on a slippery surface on 10.9.1997 should have been operated on 18.9.1997 when her blood sugar status was contra indicative inasmuch as the blood test report right from 10.9.1997 when the patient was admitted into the hospital upto 17.9.1997 when she was posted for the operation indicated abnormally high level ranging from 285 mg/dl on 10.9.1997 to 300 mg/dl on 17.9.1997 ? While on this point, we find that respondent/opposite party Nos.1 to 3 have not acquitted themselves in a manner expected of a professional service provider. They have been rash in conducting the surgery on the patient over looking her medical health status, in particular ignoring the fact that the patient was chronic diabetic with complaints of hypertension. This is clearly borne out from the records. She was admitted on 10.9.1997 with the complaint of facture on her right leg. Respondent/opposite party Nos.1 to 3 had initially scheduled a surgery to be undertaken on the very next day i.e. 11.9.1997 (page 23 of the medical record) but, when they sought the opinion of the Physician with regard to the blood sugar and blood pressure status of the patient, they were advised to “wait for a couple of days till diabetic and hypertension are controlled” (page 24 of the medical record). The surgery was, therefore, postponed. The medical record (page 25 of the medical record) further indicates that on the very next day i.e. 11.9.1997, the surgery was scheduled for 13.9.1997 without any reference to the blood sugar level which stood at 370 mg/dl on 11.9.1997. Therefore, it is obvious that the opposite parties for reasons not appearing on record were very confident that the blood sugar level within two days would drastically come down to the normal level. It is admitted that on 12.9.1997, the patient developed some cardiac problem and had to be rushed to the ICU and had to be treated with oxygen inhalation. She remained there until 16.9.1997. But for this development, the patient would have been operated on 13th irrespective of the physician’s advice to wait for blood sugar control. The medical records do not reveal the health status of the patient when she was taken out from the ICU but the opposite parties admit that she was posted for the surgery on the very next day i.e. on 17.9.1997. While, the opposite parties contend that the surgery was undertaken on 17.9.1997, the allegation of the complainant is that the actual operation was done on 18.9.1997. Intriguingly, the medical records of the hospital are totally silent on the events on 17.9.1997 and in so far as 18.9.1997 is concerned, there is only one entry allegedly made at 9.30 p.m. which states that the patient has no fresh complaint and she was stable. We have carefully perused the hospital record and are surprised that the opposite parties have not stated anything with regard to the surgery which admittedly was undertaken with the application of spinal anaesthesia. It is not stated who the anaesthetist was and whether he was a willing partner to the operation despite the adverse blood sugar status of the patient. To our mind, either page 17 of the medical record is not the original record which may have been substituted at a later stage as has been alleged by the complainant or else the opposite parties ought to have satisfactorily explained as to why the details with regard to the condition of the patient prior to the operation and after the operation is not on record. Physician Dr.Anand Rao on 10.9.11997 in his opinion had clearly stated that the patient had a poorly controlled diabetes mellitus and based on this opinion, the scheduled operation on 11.9.1997 had been postponed. Further his affidavit (page 82 of the paper book) clearly states that he was not consulted thereafter either for rescheduling the surgery for 13.9.1997 or even for the surgery actually done on 18.9.1997. We find that while the operating surgeon, respondent/ opposite party No.2 – Dr.Thomas Chandy in his affidavit states that the operation was done on 17.9.1997, the Physician - respondent/opposite party No.4 refers to the surgery having been conducted on 18.9.1997. In any case, it is established from the records that after the initial opinion offered by the physician with regard to the diabetes and hypertension status which was contra indicative ; no clearance was obtained from him and the operating surgeon went ahead with the surgery either on 17/18.9.1997. Thus, the operating surgeons cannot be absolved of their responsibility to have ignored the requirement of ensuring that the health status of the patient permitted them to undertake the surgery. We are of view that when the patient was admitted into ICU and remained there from 12.9.1997 to 16.9.1997 ; there was no emergent need to operate on her on the very next day, without ascertaining her blood sugar and hypertension status. Clearly it is a case of negligence. That the respondent/opposite party Nos.1 to 3 have failed to take appropriate care of the patient even in the post operative phase is established from the records that the blood sugar status of the patient was not properly and thoroughly controlled and monitored ; the blood sugar level was not checked on 21st, 22nd and 23.9.1997 and she was discharged on 24.12.1997. The medical records are completely silent with regard to the operating surgeon having examined the patient after the operation or at the time of discharge specially with regard to the healing of the wound since it was expected of him to have satisfied himself that there was no infection of the wound as the patient was having the background of diabetes. To have discharged the patient in an uncertain condition, in our view does amount to negligence. To our mind, it appears that the infection at the pin holes had already set in while the patient was in the hospital and, therefore, when the patient went home, there could be no improvement and the opposite parties have been trying to pass on the blame on the complainant on the plea that the advice and instructions given to her with regard to salt restrictions and diet control etc. were not strictly followed and that the patient did not come for review. This is only an afterthought as even when the patient was admitted for the second time on 8.10.1997, the opposite parties completely failed to control the diabetes even though she was hospitalized for 26 days and finally they expressed their inability to treat the wound which finally resulted in the amputation of her leg in another hospital. High blood sugar was the main cause of the development of gangrene at the wound site and no amount of antibiotic and medicines could help. It was a blunder on part of the operating surgeon of the hospital to have ignored the diabetic status of the patient and undertaken the surgery with undue haste. Another limb of the argument very interestingly advanced by the learned counsel for the respondent relates to whether fixing of the external fixator was an operation/surgery. We are surprised that respondent/opposite party No.2 – Dr.Thomas Chandy, the operating surgeon in his written submission has taken the stand that in fixing external fixator, there is no incision i.e. cutting of skin using the knife. It has been argued that it was not an operation or a surgery. This strange plea coming from the Director of the hospital who claims to be an experienced Orthopaedic Surgeon falls on its face when Dr. Chandy in his cross examination states that “External devise only pins are inserted and there is no putting plates. Pines are inserted through the tissues which enter the bone. From my memory, I can say that I had used 6 pins to the patient in this case. Since the patient was a high diabetic, we inserted the pin, we have taken the decision to insert the pin.” When pins are being inserted into the bones of the patient, they have to pierce through the skin and the tissues and if that be not an operation, we fail to understand as to what would it be ? Oxford English dictionary describes “surgery” as a branch of medicine concerned with treatment of bodily injuries or disorder by incision or manipulation, specially with instrument. While it defines “operation” as an act of surgery performed on a patient. In this case, the patient has been administered spinal anaesthesia and pins (instrument) have been made to pierce through the skin and the tissues and also through the bones and, therefore, calling it a “procedure” only amounts to camouflage the real truth of being a surgical operation. Besides their own medical record repeatedly refers to the surgery being postponed. Their own Dr. Ajit Benedict Rayan in his affidavit refers to the surgery in this procedure in the Operation Theatre. The stand taken by opposite party No.3 – Dr.Iyer in his cross examination that no surgery was performed on patient in this case (page 90 of paper book) is indicative of desperate attempt by the opposite parties to wriggle out of their liability as no orthopaedic surgeon could ever take the stand that fixing the external fixator by inserting pins through the bones does not amount to surgery. The respondent/opposite parties have referred to some medical literature to justify their stand that the procedure to adopt external fixator is indicated where the risk of infection is the highest and, therefore they had correctly adopted the external fixator procedure as opposed to external fixator procedure. That is however, not the point seriously pressed by the complainant and will not help mitigate the degree of negligence. Under the circumstances, we find that the State Commission has taken a completely erroneous view that not controlling the blood sugar level of the patient at the time of the operation, did not anyway affect the case as in such cases, the interest of the patient for the fixation of the external fixator at the fracture site was a must. It is a totally perverse view. The appropriate protocol in a case like this should have been to wait for some more time and control the blood sugar and blood pressure level to normalize while retaining her in hospital and only thereafter undertaken the surgery. Had that been done the patient would have been saved from the consequences resulting in the amputation of her leg. Respondent/ opposite party Nos.1 to 3, therefore, cannot escape the liability of being grossly negligent. In so far as the contention that no expert opinion has been produced by the complainant is concerned ; the plea has to be rejected out right as the overwhelming evidence which have not been effectively rebutted by the opposite parties clearly prove that not only the operation was conducted when the blood sugar level of the patient was abnormally high which, no professional even with ordinary skill would have resorted to but also that the post operative care has been grossly lacking. This being a clear case where the records and averments of opposite parties reveal the negligence, therefore, the doctrine of Res ipsa loquitur will be squarely applicable. Hon’ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr.(2005) 6 SCC I in para 21 of the Judgment referring to the degree of skill and care required by a medical practitioner has extracted the Halsbury’s Laws of England (4th Edn. Vol.30, para 35) which states as under :- “35. Deviation of normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice ; (2) that the defendant has not adopted it ; (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.” In this case, all the three components stated above are clearly established inasmuch as the opposite parties have not followed the usual and normal practice of performing a surgery only after controlling the blood sugar level and they have not adopted the protocol of first bringing down the blood sugar level during the period of hospitalization before embarking on the surgical operation and thirdly they have failed to provide proper care not only in monitoring the state of infection and healing of the wound while the patient was in the hospital but discharged her in uncertain condition which no professional man of ordinary skill would have done. The order of the State Commission dismissing the complaint, therefore, deserves to be set aside. We order accordingly. In so far as the quantum of compensation is concerned, we find that the role of respondent/opposite party No.4 – Dr.Anand Rao in so far as negligence is concerned is minimal. Whenever his opinion was sought he had advised postponement of the surgery till blood sugar is controlled. He was only a visiting doctor and had left the hospital within two months. He, therefore, cannot be held negligent or liable. The complainant has claimed compensation of Rs.15,63,910/-. However, there are no details as to how this figure has been arrived at except stating that he has spent a sum of Rs.69,752/- towards hospital charges and medicine while under treatment of the respondent/ opposite party No.1 – hospital and another Rs.43,133/- incurred in the treatment in Mallya hospital where the leg of the complainant No.1 was amputated. As already stated, complainant No.1 has expired during the pendency of the complaint before the State Commission leaving behind a minor daughter. The husband is in service. He has furnished details of the expenditure incurred on the treatment. Under the circumstances, we are of the view that a lump sum compensation of Rs.3 lakhs will meet the ends of justice. We further direct that this amount be paid by the opposite party/respondent Nos.1 to 3 jointly and severally within a period of two months and the complainant No.2 will invest a sum of Rs. 1 lakh in a fixed deposit in the name of the minor daughter of the deceased so that it will be financial support to her when she comes of age. The appeal is accepted in these terms. …………………………J (K.S. GUPTA) PRESIDING MEMBER ………………………… (S.K. NAIK) MEMBER |
