BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A.  1569/2007 against C.C.  151/2006,  Dist. Forum, Karimnagar.

Between:

Dr. B. Shashikala

W/o. B. Vidyasagar

Age: 44 years,

Praveen Maternity  Nursing Home

Mission Compound, Old Bus-stand

Korutla, Karimnagar Dist.                           ***                           Appellant/

            Op. 

                                                                   And

Kattam Ramakishan

s/o. Narasaiah, Age: 38 years

Tailor, H.No. 5-2-166,

LIC Colony, Korutla,

Karimnagar Dist.                                        ***                         Respondent/

Complainant

Counsel for the Appellant :                         M/s.  Gopi Rajesh & Associates.

Counsel for the Respondent:                      M/s. Vijay Ashrit.

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

SMT.M.SHREESHA, LADY MEMBER.

MONDAY, THIS THE FOURTEENTH DAY OF JUNE TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1)                This is an appeal preferred by opposite party Gynaecologist    against the order of the Dist. Forum directing her to pay Rs. 3 lakhs towards compensation on the ground of medical negligence. 

2)                The facts leading to filing of the complaint are that late K. Laxmi is the wife of the complainant.  She was suffering from anaemia.  She consulted the appellant a Gynaecologist at Karutla.   She advised her to undergo Hysterectomy.   On the consent given by the patient she conducted the surgery on 6.1.2005.  At about 12 noon she started bleeding.   After 5 hours, second operation was conducted.   When the patient developed abdominal distension the appellant advised the complainant to shift his wife to a higher centre for further care and treatment and discharged her on 14.1.2005.    The patient was taken to Krishna Institute of Medical Sciences (KIMS), Hyderabad   at about 3.49 p.m. on 14.1.2005.    Despite treatment she died  on 15.1.2005 at 8.10 a.m..    Alleging negligence and deficiency in service on the part of opposite party  the complainant  claimed a compensation of Rs. 5 lakhs. 

3)                 The appellant resisted the claim alleging that she exercised due skill in operating and treating the patient.    The patient unfortunately developed hypotension five hours after the surgery.   She informed the complainant explaining the medical condition and requiring  for a second surgery.   After obtaining consent she conducted the second surgery.  There was no bleeding except for some generalized ooze.  The patient was stable and became normal.   She maintained normal B.P. and pulse for five days.    However, on 10.1.2005 at about 8.00 p.m.  she developed distension of abdomen.  It was managed by giving I.V. fluids.   The patient was stable till 13.1.2005.   She passed stools 3 to 4 times in a day.   Again on 13.1.2005 at 5.00 p.m.  distension was noticed in erect position.   By taking experts opinion I.V. fluids were given and gastric tube was placed.    On 14.1.2005 at about 2.00 a.m. she fainted.    After consulting a  Physician, she advised  the patient to be shifted to  a higher centre for further treatment, and discharged her at about 4.00 a.m.   Later she learnt that she died in KIMS, Secunderabad.     As she knew  the husband of the complainant  he being a Private Medical Practitioner and   LIC agent she treated  free of cost to her.    Therefore the case does not come under the purview of Consumer Protection Act and prayed for dismissal of the complaint with costs. 

4)                 The complainant in proof of his case examined himself as PW1 and another villager as PW2 and Dr.  Laxmikanth, a doctor at KIMS as PW3 and filed Exs. A1 to A28.  Refuting his evidence the appellant examined herself as RW1 and filed Exs. B1 & B2. 

5)                 The Dist. Forum after considering the evidence placed on record opined that the appellant was negligent   in performing hysterectomy operation  as well as  subsequent treatment, and awarded a compensation of Rs. 3 lakhs

6)                 Aggrieved by the said decision, the opposite party a Gynaecologist preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.    It ought to have seen that all through the patient was taken due care.   Conducting second surgery was in the interests of patient certified by the very doctor PW3 who was examined by the complainant.    The case sheet Ex. A26 of KIMS does not in any way show that there was negligence on her part, and therefore prayed that the appeal be allowed setting aside the order of the Dist. Forum.

7)                 The points that arise for consideration are:

i)                   Whether there was negligence on the part of appellant either in conducting the operation or treating the patient?

ii)                 Whether the complainant is entitled to any compensation?

If so to what amount?

          iii)      To what relief?

8)                 It is an undisputed fact that the appellant is a qualified Gynaecologist at Korutla running a nursing home under the name and style of Praveen Maternity Nursing Home.    It is also not in dispute that the complainant’s wife Smt. K. Laxmi was taking treatment in the appellant’s  hospital  since 8 years as she was having  bleeding problem and anaemia.  Finally the appellant advised her to undergo hysterectomy.  After taking necessary consent surgery was conducted on 6.1.2005.   Admittedly at about 12 noon the patient had developed hypotension.   Five hours after surgery when complained bleeding  at the operation site, second operation was conducted to know whether there was bleeding in the abdomen.   She found there was no bleeding.  There upon she was treated in the nursing home by administering medicines.   Again on 13.1.2005 she had  distension of abdomen.     As a part of  treatment she was treated with I.V. fluids and was inserted a  gastric tube.  On the next day  i.e., on 14.1.2005  at about 2.00 a.m. the patient had fainted.     On that she advised to take her to a higher centre at Hyderabad for further management and discharged her at 4.00 a.m., on 14.1.2005.    Accordingly she was brought to KIMS, Secunderabad where she was admitted as in-patient.   The record maintained by KIMS marked as Ex. A27 mentioned that on 14.1.2005 at 3.49 p.m. the patient came to the hospital in a serious condition complaining abdominal distension since four days with vomiting 3days and fever associated with dyspnoea of one day duration.   Evidently after discussing with the appellant the following facts were noted:

          “The patient was operated for menorrhagia and

anaemia on 6.1.2005.

             The patient had post operative bleed - Cause?

            (Operated five hours later)

            Diffuse ooze from sub-drain and hysterectomy operation site.

            The patient had vomiting from 9.1.2005.

            Distension on 10.1.2005.

            Fever on 12.1.2005

            Patient was referred here.  Hypotension and shock.

            Past history:    Repeated anaemia

                                                History of menorrhagia present. 

            Patient drowsy, responding to commands, sweating, tachycardia

            B.P. not recordable,  pulse – feeble.”

It was also mentioned :

“she had septicaemia and endotoxic shock with un-recordable blood pressure, with severe tachycardia.   She carries high risk and she requires high antibiotic with critical care.   In spite of treatment she carries with mortality.  She may require ventilator support and she not tolerate any intervention at present.”  

By  6.00 p.m.  there was  a mention  in spite of 2 litres of fluid support,   there was marginal improvement  in B.P.  Pulse – feeble.   P.R. 145/min. After administering antibiotics, medicines etc. finally they examined at about  8.00 a.m.  on 15.1.2005  and found ‘died due to cardiac arrest’.

9)                Admittedly  on 14.1.2005  in the night at about 2.00 a.m.  the patient went to toilet and  was fainted.  When  the appellant was called, she came and attended on her and  found  the patient to be febrile,  running  102ºf temperature and B.P. was 90/60.  She treated her  for correction of shock.   According to the appellant,  immediately  a  physician was called  who in turn advised to  shift the  patient  to a higher centre at Hyderabad for further management.    Then she discharged the patient  at about 4.00 a.m. on 14.1.2005.   The complainant was taken to Hyderabad  at   3.49 p.m. to KIMS.   

This the appellant imputes to the complainant stating that due to delay  in taking her to KIMS  hospital, her condition  was deteriorated.

10)              The  entries in the medical record maintained by KIMS  show that  the patient had suffered from septicaemia  and  endoscopic shock during the treatment with the appellant.  Though she had been  vomiting  for three days and she was feeble all through  associated with dyspnoea  the appellant did not administer  higher  antibiotics.  She was not discharged  till her condition had become  serious.  The appellant  had  discharged  her  at the last minute,  when her condition became worse and there was no scope for cure  and directed her to go to a higher centre at Hyderabad.   The appellant has been  running a clinic  in a remote area in a village at Korutla.   Naturally when she directed the patient to go to a higher centre at Hyderabad,  her husband could not have taken  her immediately, more so, when she was  in hypotension and shock.  She was anaemic.    The entries noted in Ex. A20  death  summary of KIMS  show that  at the time  she was brought to KIMS  her B.P. was not recordable  and the pulse was feeble.   In fact considering the situation of the patient, she should have arranged  ambulance  with all requisite medicines and assistance  so that  in the meantime  the patient may not collapse.   She could have at least informed  the complainant  the precautions to be taken while shifting to Hyderabad.   All this was due to inadequacies of treatment. 

11)              At the cost of repetition,  we may state that she became highly anaemic  and was in critical condition  only  after the operation.    It is not as though  when  she had conducted  the first operation, no complication has arisen.    After operation it was found that  there was bleeding  which she termed as generalized ooze.  According to her “ After stabilizing  the patient to normal position, she was shifted to the ward.   The patient  well maintained pulse and BP for five days, later on she developed  slight distension  of the abdomen on  10.1.2005 at 8.00 p.m.   After five days she developed slight distension  in her abdomen  and was managed medically.  

12)              PW3 Dr. Laxmikanth a doctor of KIMS who treated the patient after she was referred to their hospital  stated that “ admittedly the appellant had operated the patient for anaemia, menopause  by conducting caesarean operation.    It is also not in dispute that  on the same day  she was operated after five  hours  for hypotension  when she found ooze from the operated line. He gave certificate Ex. A26 mentioning  that the cause of death was septicaemia.   It could not have been  had proper antibiotics were given.   In the cross-examination he stated “ taking long time to get the patient would be detrimental to the patient and was not proper.”  He did not conclude that  it was the sole reason  for her death.            When a question was put  to him,  whether  he  find any pus  at the time when she was admitted,  he gave answer,  that he  did not find any pus  in the sutured place.  When a  hypothetical question was put whether second operation could be conducted within five hours,   he  answered that  “in the best interests of patient  it is not improper to conduct second operation within five hours”.    So also when he was questioned  to give his impressions about the treatment  after perusing  the case sheet maintained by the appellant,  he stated that “ opposite party has treated the patient with reasonable medical care”.    The complainant could not have cross-examined PW3  by declaring him  as hostile, in view of the fact that  he stated in the chief-examination  that the “patient came to the hospital in a serious condition complaining abdominal distension since four days with vomiting  and fever associated with  dyspnoea of one day duration.   When she came  she was drowsy, tachypnonea  and B.P. was not recordable.   She suffered from septicaemia with endoscopic  shock”  suggesting negligence  on  the part of appellant.  

13)              His evidence cannot be taken  to imply  that he has given a clean chit to her.  She could not have kept the patient  in her hospital for five days  despite the patient was vomiting  and had high fever  and other ailments.  Only when her condition became critical she was discharged from the hospital without giving any assistance to keep her alive  till she reached a higher centre at Hyderabad.   When PW3 stated that  she died of septicaemia  and hardly was she there in the hospital for 12 hours, it is too late a day to administer  higher antibiotics  to contain septicaemia.    The fact that she died of septicaemia would undoubtedly show that  there was no proper treatment in the hospital of the appellant and that led to her death. 

14)              Recently the Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital in  Civil Appeal No. 2641/ 2010 after considering the entire case law  and where the principles of   res ipsa loquitor  have been made applicable  in the case of medical negligence  held :

“In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.”

The appellant herself admitted that after the operation she observed there was blood oozing internally and again she was re-operated.    The explanation was that  since the patient was anaemic and low weight there might be possibility of continuous bleeding.  When the patient had developed abdominal distension, according to her she called the surgeon by name Shankara Bas and physician by name Dr. Dharma Rao.      “I called PW1 at 8.30 p.m and informed him to shift the patient to a higher centre for which he agreed”.     However, the patient was discharged at about 4.00 a.m. on 14.1.2005.    As we have earlier mentioned that PW3 noted the condition at the time when she was admitted at KIMS.  At the cost of repetition, we may state that she was admitted in a serious condition complaining abdominal distension and  was continuous vomiting for four days and fever associated with dyspnoea of one day duration. 

She was drowsy, tachypnonea and B.P. was not recordable.    He categorically stated that the patient suffered from septicaemia with endoscopic shock.  In spite of the fact that she was put on ventilator she died about 7.30 a.m. on 15.1.2005. 

15)               Though PW3 stated that the appellant had diagnosed that she had ‘septicaemia’ and the said diagnosis was correct, no where she stated that the patient  had ‘septicaemia’.    It was a leading question.   The  appellant never said so.   Obviously, when it became too late a day, she referred the case to a higher centre and by that time her condition became worse and ultimately succumbed to death.    The appellant could not show that the treatment given by her is in accordance with settled medical practise.    The contention  is that there was no expert evidence to prove that there was negligence. Such a  contention is no more available in  the light of  evidence of PW3.   Even otherwise  it is no longer required  in cases of this nature  by virtue of the decision in  V. Kishan Rao vs. Nikhil Super Specialty Hospital (supra). 

16)              In fact, PW3 in his chief-examination had categorically  opined that at the time she was brought  she was in a precarious condition.  RW1 could not defend herself by mentioning that she had acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.   Therefore the Dist. Forum after perusing the record has rightly found hat there was negligence  in post operative treatment. 

17)              The learned counsel for the appellant contended that she treated the deceased without taking any fee in view of the fact that her husband is an RMP doctor.   He  refers clients both for treatment as well as for insurance policies.    No doubt, the complainant could not prove that he had paid any amount to  RW1  for the treatment.    PW1  stated on oath that  RW1  was not in the habit of  passing of receipts.   According to him he paid Rs. 10,000/-.  Admittedly on the basis of prescription issued by the appellant, the complainant has purchased  various medicines evidenced under Exs. A1to A11. 

Later he spent about Rs. 50,000/- for treatment  in KIMS evidenced under  Exs. A13, A15, A18 and A19.  PW1, husband of the deceased  admitted that he worked as a  compounder  with the appellant’s husband who is also a medical practitioner.  However, no suggestion was made to PW1 that she gave free  treatment in view of the fact that  he was sending patients as well as assured to get the policies.    He examined PW2 a villager  who stated that RW1 was not in the habit of issuing receipts. 

18)              RW1  is running a nursing home along with her husband.  It has a facility of  Ultrasound scanner with linear, Tran’s vaginal probe, cardiac echo package,  Pulse Oximeter,  X-Ray clinic, laboratory etc., and various tests  in her clinic.   Undoubtedly she must be maintaining  accounts.   There is no reason why she did not file  her accounts in order to prove that the treatment given to the deceased was  free of cost.    It is incumbent  on her to prove by filing accounts to prove that no amount was taken from  PW1.    She cannot get over by stating that  as PW1 was sending clientele and therefore  she had not taken fee from him.  Even assuming that it is true,  that itself  constitutes consideration, whatever be the mode  which is sufficient  to  come under the purview of Consumer Protection Act.    The Dist. Forum after considering the death of the deceased aged  about 38 years  and the fact that the complainant  is having children  opined that an amount of Rs. 3 lakhs  could be awarded out of which  Rs. 1 lakh was allowed to children.   The complainant had not only lost conjugal life  but also children who lost the love and affection of their mother.  There was loss of estate.   Considering the over all view of the matter a compensation of Rs. 3 lakhs for a woman aged 40 years  cannot be said to be high.  It is reasonable and modest in the circumstances.    We do not see any merits in the appeal.

19)              In the result the appeal is dismissed with costs computed at Rs. 5,000/-.  Time for compliance four weeks.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

MEMBER           

   Dt.  14. 06.  2010.

*pnr

“UP LOAD – O.K.”