Appeared at the time of arguments through video conferencing

For Peddi Narayana Swami   :  Mrs. K. Radha Rao, Advocate

For Kamineni Hospitals                :  Mr. G. Ramakrishna, Advocate 

For Dr. J.V.S. Vdya Sagar    :   Ms. JVL Bharti, Advocate

Pronounced on: 26^th August  2022 

ORDER

DR. S. M. KANTIKAR, PRESIDING MEMBER

1.     This common Order shall decide both the Appeals, which have been filed under Section 19 of the Consumer Protection Act, 1986.  The F.A. No. 215 of 2011 filed by the Complainant – Peddy Narayan Swami for enhancement of compensation, whereas F.A. No. 278 of 2011 has been filed by the Managing Director, Kamineni Hospital challenging the Order dated 08.03.2011 passed by the State Consumer Disputes Redressal Commission, A.P. (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 55 of 2018.

2.     Brief facts are drawn from F.A. No. 215/2011. On 04.12.2006, the Complainant's son Shivram Prasad (hereinafter referred to as the ‘patient’), aged about 27 years sustained fracture of left leg (femur) due to fall. He took initial treatment in the local hospital at Vishakhapatnam and thereafter, on 06.12.2006, he was taken to Hyderabad and at 9 a.m., was admitted in Kamineni Hospital (hereinafter referred to as the ‘Opposite Party No. 1’). There an Orthopedic Surgeon Dr. J.V.S. Vidyasagar (‘Opposite Party No. 2’) examined the patient. The investigation Arterial Blood Gas (ABG) revealed hypoxia. It was alleged that the patient was operated hurriedly on the next day (07.12.2006) without informed consent. Postoperatively the patient was kept on ventilator support. It was further alleged that the doctors and nurses did not attend him regularly despite pain and suffering. The treating doctors after 3 days informed the Complainant about good recovery of his son. On 12.12.2006, all of sudden at about 5 p.m., the doctors informed the Complainant about death of his son at 4 p.m.  The Complainant further alleged that despite requests the Hospital did not issue entire medical record. Being aggrieved due to the negligent treatment and the deficient services of the Opposite Parties Nos. 1 and 2 causing death of his son, the Complainant filed the Consumer Complaint before the State Commission and prayed compensation of Rs. 25 lakh plus Rs. 25,000/- as costs. 

3.     The Managing Director of the Hospital (Opposite Party No. 1) filed his reply and denied the negligence during the treatment of the patient. He submitted that due to the fall, the patient sustained fracture shaft left femur in Vishakhapatnam and initially on 04.12.2006 treated at local hospital and then he was shifted to the ‘Opposite Party No. 1’ Hospital at Hyderabad on 06.12.2006. The patient was operated by the Orthopedic Surgeon, Dr. J.V.S. Vidyasagar - ‘Opposite Party No. 2’ with due diligence and utmost care.

4.     The Opposite Party No. 2, in his reply, submitted that the patient was admitted under critical care. He performed Inter locking Nail (ILN) operation as per the established norms. The other doctors involved during the surgery were not made a party to the Complaint. He further submitted that since he was the head of the Orthopedics, concerned with surgical aspects and he had no control over the treatment of critical conditions. He personally discussed with Dr. Venkateswara Swamy, who was close associate of the patient and the attendants about the treatment and prognosis of the case. The surgery was performed after taking ‘special informed risk consent’ from the Complainant and Dr. Venkateswara Swamy. There was no deficiency or negligence from him. He further submitted that throughout hospitalization the patient was under the care of critical care team, who was maintaining ventilatory care in the ICU.  Therefore, neither the Opposite Party No. 2 had any control nor his any team member had knowledge/expertise to interfere with the critical care treatment. He submitted that ILN of femur was performed by the Orthopedic team after the clearance from Dr. Satyanarayana, the head of critical care team. The patient died due to lung injury, which further led to ARDS and sepsis. He further clarified that, in 2008, he had already left the Kamineni Hospital, but the Complaint was filed with intention to just victimize him and damage his reputation. 

5.     The State Commission, upon hearing the parties, held the Opposite Parties Nos. 1 & 2 held liable for deficiency in service for not obtaining consent of the Complainant before the patient was kept on ventilator and not explained about complications. The Complaint was partly allowed and the Opposite Parties Nos. No.1 & 2 were directed to pay jointly Rs. 2,50,000/- towards compensation and Rs. 2,000/- towards Costs.

6.     Being dissatisfied, the instant Appeals were filed before this Commission.

7.     We have heard the arguments from the learned Counsel for both the sides. Perused the material on record inter alia the impugned Order and the treatment aspects.

8.     The short delay in filing both the Appeals is hereby condoned.

9.     The learned Counsel for the Complainant reiterated the facts and further argued that to know about the real cause of death, the Opposite Parties failed to supply the medical record. He further argued that the State Commission, awarded meager compensation to the extent of Rs. 2.5 lacs only. The deceased patient left behind his parents and other family members, therefore Complainant deserves enhanced compensation. 

10.    The learned Counsel for the Opposite Parties submitted that the State Commission failed to consider that after the surgery, the patient was under care of Anesthetist and under constant monitoring. The State Commission wrongly observed that the Anesthetist ought to have been summoned when the patient was suffering from hypoxia. He submitted that the Cardiologist was always present in the hospital for monitoring the patient. The State Commission wrongly held that there was no proper consent before application of ventilator, however, the consent was obtained from the Complainant’s brother. The Complainant failed to produce documentary evidence in this regard.  Even, the State Commission did not seek any expert opinion.   

11.    We gave our thoughtful consideration to the arguments from both the sides. Perused the medical record and literature on the subject.  It is evident that on 04.12.2006 after initial treatment at Visakhapatnam, the patient was shifted by road to Hyderabad at Opposite Party No. 1 Hospital on 06.12.2006. At the time of admission in the Opposite Party No. 1 – Hospital, the patient was hypoxic. After examination, it was diagnosed as fracture left femur shaft fracture, acute lung injury with ARDS ((fat, marrow embolism).  The doctors stated about need for O₂ therapy.  The treatment plan was surgery for fracture by Inter locking nail (ILN) fixation.

12.    On careful perusal of medical record, it is evident on 06.12.2006 that after admission at 11.57 a.m., the Arterial Blood Gas (ABG) values revealed PO₂ 49.3 and O₂ saturation only 83.4%. Therefore, for urgent immobilization, ventilatory support was advised. Thereafter, repeat ABG at 3.00 a.m., it showed PCO₂ 33.9 and PO₂ 83.5. Clinically, ? fat embolism was suspected. In our considered view, initially it was necessary for the treating doctors to stabilize the patient by conservative treatment before the ILN of fracture femur. Moreover, it was the primary duty of the anesthetist to treat the emergency and serious effects fat embolism. There was need for complete oxygenation of the patient, but without proper assessment, in haste the ILN surgery was performed. It was not a reasonable standard of practice of the Opposite Party No. 2 and the anesthetist. It was utter failure of duty of care from the Opposite Parties, thus medical negligence.

13.    From the record, it is amply clear that the patient was already in the compromised hypoxic state due to fat embolism and lung injury. It is surprising, before the surgery the treating doctor failed to seek physician’s opinion and do proper evaluation. The Anesthetist also acted carelessly, failed to do pre-anesthetic check-up before giving the fitness for proposed ILN surgery Therefore, medical negligence is attributable to the Anesthetist for an ‘act of omission’ and over enthusiasm, the ‘act of commission’ of the Orthopaedician (Opposite Party No. 2), who performed ILN immediately. As per medical literature, the fractures of long bones are known to produce fat embolism, which is very fatal condition. In the instant case, the ILN surgery further precipitated the fat embolism or thromboembolism. Therefore, we have no hesitation to hold liable both the doctors i.e. the Anesthetist and the Orthopaedician for the medical negligence.  Any Surgeon with ordinary prudence from the clinical symptoms and signs shall suspect fat embolism. At the admission itself the patient presented with classic signs of fat embolism, but it was left untreated or uncared. The treating surgeon (Opposite Party No. 2) should have also been vigilant and should have been expressed his apprehension/risk to perform ILN. We further note that the role of Anesthetist was crucial in this case, but the Complainant has not impleaded him as one of the Opposite Parties. In our view, at this stage, impleading the Anesthetist will certainly delay the consumer justice, which will ultimately defeat the object and statement of the Act, 1986. The incident occurred in 2006 and now we are in 2022. The anesthetist was from the Opposite Party No. 1 hospital; therefore,   the hospital shall be vicariously liable for the negligence of their Anesthetist.

14.    As discussed above, we hold the Opposite Parties liable for failure in duty of care. This view is fortified from the decision of Hon’ble Supreme Court in the case of Dr. Laxman Balkrishan Joshi Vs Dr. Trimbak Bapu Godbole and Anr.[1], wherein it was observed as below:

"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice 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 whether 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. The above principle was again applied by this court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570).  It observed "A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one."

15.    The Hon’ble Supreme Court, while deciding the cases of medical negligence, held the doctors liable, where they acted carelessly. It was held in the case of Spring Meadows Hospital v Harjyot Ahluwalia[2], as follows:

“Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor…’

16.    However, in the instant case the act of the Opposite Parties was not a bonafide mistake, but it was negligence is attributed to the treating doctor. We cannot ignore that, the deceased left behind the parents and other family members. The compensation Rs. 2.5 lac awarded by the State Commission seems to be unjustified and inadequate. Therefore, considering the facts and peculiar circumstances of this case, in the ends of justice we enhance the compensation to Rs. 20 lakh as just and adequate.

17.    Based on the foregoing discussion, First Appeal No. 215 of 2011 filed by the Complainant is party allowed and First Appeal No. 278 of 2011 filed by the Opposite Party No. 1 - Hospital is dismissed. The Opposite Parties are directed to pay the total compensation of Rs. 20 lakh, out of which, the Hospital (Opposite Party No. 1) shall pay Rs. 15 lakh and Dr. J. V. S. Vidyasagar (Opposite Party No. 2) shall pay Rs. 5 lakh to the Complainant within six weeks from today, failing which the amount shall carry interest @ 10% per annum till its realization.  However, there shall be no order as to costs.