By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The mother of complainant was treated by Dr. Gnanadas and she got admitted in the opposite party hospital on 30/11/2017 as IP No.1718/012083. The doctor said to the complainant that there is no chance for any complication due to surgery and can be turn back to home within one week. Accordingly, on 05/12/2017 the mother of complainant undergone surgery. The complainant did not seek a second opinion and consented for the surgery since the doctor said that there is no chance for complication during surgery or thereafter. But after the surgery the condition of mother became more aggravated. On 07/12/2017 CT scan was done and the doctor Gnanadas told the complainant that some issues are therein brain and second surgery was done on the same day but there was no improvement in the condition of the patient. Complainant talked with the doctor and the doctor said that the scanning report is not correct. Then the complainant asked what was the reason for second surgery. But there was no correct answer from the side of doctor. The scanning was repeated on 15/12/2017, 21/12/2017 and found that bleeding is there. The doctor repeated the answer that the finding as per scan report was not correct. Hence thereafter complainant along with his friends approached the opposite party and enquired with the doctor but the doctor repeated the answer and told that she will be improved within two days.
2. On 08/12/2017 the complainant along with his friend Adv. Ummer approached the scanning center and demanded scan report but they refused to issue the same and later told that scan report was not prepared yet that time. The complainant asked how the surgery was conducted without scan report, then also there was no answer. Thereafter within one hour they issued copy of report to the complainant. Then they approached doctor shine Sebastian who conducted scanning and doctor said that what is reported by them is correct and the statement of Dr.Gnandas is not correct. But there was no answer for not preparing the report even at the time of their enquiry. Meanwhile surgically removed tumor was taken for pathology examination stating the mother of the complainant suffering from cancer disease. But the pathology report disproved the doubt. Thereafter on 22/12/2017 complainant along with friends and relatives approached Dr.Seethi, the medical superintendent of the hospital and submitted the issues and requested clarity of the issues. The medical superintendent said that he will discuss with the concerned doctors and will inform the complainant but there was no effective interference from the side of medical superintendent. Not only that on 23/12/2017 the complainant was called to the operation theater and talked justifying the doctors and scan Centre without any clarity. Thereafter the complainant caused letters to the opposite parties demanding details of the condition of the patient and also complained regarding the issue. On 02/01/2018 the medical superintendent issued a letter to the complainant expressing willingness to refer the patient. Since the complainant was aware the condition of the patient was not fit for shifting in to another Centre, compelled to retain in the same hospital. Complainant alleges there was grievous negligence and deficiency in service in conducting surgery and treatment of the mother of the complainant by the Dr.Gnandas and the scan center.
3. Thereafter 71 days the mother of the complainant was referred and discharged on 08/02/2018 at the pressure of the complainant and his friends. The complainant was informed by the opposite party to shift the patient to any other hospital and thereby the complainant had issued a letter to refer the patient and also demanding treatment records including CD of the surgery, but the opposite parties refused the same. The opposite party refused to issue the CD of the first surgery stating that it is not recorded. The mother of the complainant was totally bed ridden and there was no improvement. At last, the complainant mother died on 30/03/2018.
4. The complainant alleges medical negligence and deficiency in service against third opposite party and opposite parties 2 to 4 also committed deficiency in service. Hence the complainant claims compensation of Rs.20,00,000/- and cost of the proceedings.
5. On admission of the complaint notice was issued to the opposite parties and on receipt of notice they entered appearance and filed version denying the entire allegations and averments in the complaint.
6. The first opposite party submitted that the hospital is working as per law and rules with registration and license. All the opposite parties are working in the hospital and they are qualified, experienced and efficient in the field of medical science. The mother of the complainant Mrs. Assya 69-year-old was treated in the neuro surgery department under Dr. Gnandas from 18/05/2015 to 01/06/2015 as IP No.506/001759 and OP No.0506/008276 for the similar ailment and successful surgery was done also. Thereafter 13 year she got admitted on 30/11/2017 as IP.No 17/18/012083 in the neuro department under Dr.Gnandas. The complainant appeared for treatment again from the past experience before the Dr.Gnandas. There was no defect or deficiency in treatment and so the entire allegations are denied by the first opposite party. All the treatment and surgery were provided with all care and caution. The complainant had issued all the treatment details as and when required by the complainant. Since all allegations are being false the complaint may be dismissed with the cost of the opposite party.
7. Opposite parties 2 to 6 filed joint version denying the entire averment in the complaint. The opposite party submitted that the complaint is not maintainable either in law or on fact. The complainant is frivolous, vexatious devoid of truth or bonofides. The opposite parties denied allegation of negligence, deficiency in service and also contended that the complaint is not entitled to get any relief. It is also contended that the complaint is bad for non-joinder of necessary parties since the complaint not arrayed all the legal representatives of the deceased patient as party in the proceedings. The complaint is filed for the undue financial advantage of the complainant. The complainant has stated false and distorted account of facts regarding the treatment of the patient at Moulana Hospital.
8. The opposite parties submitted that the patient Assya, Aged 69 years was admitted under department of neuro surgery on 30/11/2017 with complaint of headache, vomiting, difficulty in walking and deterioration in the level of consciousness. The patient had a previous history of brain tumor, (A large Meningioma) 13 years back and the same was successfully managed with surgery by the third opposite party in the same hospital and she was perfectly alright till she developed recent complaints. As per clinical history the patient consulted physician Dr. Johny Cherian with present symptoms and CT scan head was taken as per his advice which showed a large mass lesion (tumor) involving frontal – temporal region suggestive of meningioma (7x5.5x6cm) in size. As per the findings in CT report physician advised neuro surgery consultation and the patient came up for consultation with third opposite party as she was previously under his treatment.
9. At the time of admission, general condition of patient was not satisfactory, she was ill looking and had a history of diabetes mellitus and hypertension. The patient was drowsy, disoriented, fundus bilateral papilledema, right hemiparesis grade 3 power. The patient was considered a high-risk case in view of her old age, bad general condition, diabetes and hypertensive state and neurological deficits was evidenced by investigation report. The condition of the patient was discussed with the complainant and other bystanders and they were well aware of the co – morbidities and risk factors involved in surgery which was the only option to save her life. The complainant voluntarily agreed to continued treatment in the hospital and the patient was admitted for surgical management as the by standers consented for surgery. The case was taken for surgery after necessary pre-operative workup and evaluation.
10. The third opposite party conducted craniotomy on 05/12/2017 and tumor was completely removed. The excised tumor was vascular, certain areas firm and certain areas soft and was adherent to brain, falx and superior sagittal sinus. Complete hemostasis was attained and gel form filled in the large cavity developed following tumor removal. Postoperatively the patient was ventilated for one day and thereafter the patient became conscious oriented, obeying commands and recognized relatives and so weaned from ventilator. But on 07/12/2017 the patient’s condition deteriorated and became drowsy and papillary reaction became sluggish and hence CT scan head was repeated. Surgeon accompanied the patient to CT room and the CT findings showed intracerebral hemorrhage, severe edema, mass effect and mild line shift and thus confirmed deterioration due to intra cerebral hemorrhage and brain edema. The findings as per CT report and cause of deterioration explained to the complainant and other bystanders and since condition was deteriorating, the need for an immediate re-exploration was discussed them and proceeded with re-exploration after taking written informed consent. During re– exploration there was hemorrhage seen a layer over gel form and blood washed away and no active bleeding was seen from tumor contact, brain surface, flex or from sinus. Post-operative hemorrhage due to passive ooze from tumor contact brain surface is an accepted and reported complication after removal of large tumor. The occurrence of hemorrhage and re-exploration findings were explained to the complainant and bystanders and the patient was kept under ventilator support and her condition was steadily improving day by day. Conscious level of the patient was improved, movement started on left side of body, level of understanding maintained well and hyper tension subsided after tumor removal. Diabetes was managed in consultation with physician. As clinical condition was improving the patient was shifted to room on 12/12/2017 and she was given due care and kept under close monitoring.
11. The condition of the patient was checked and evaluated through repeated CT scanning and there was no evidence of tumor, hyper density to suggest bleeding, no edema, no mass effect which was suggestive of a stable intracranial situation. On 08/02/2018 bystanders wanted to get discharge of the patient for taking her to MIMS Hospital Calicut on their own violation and hence patient was discharged as per request. At the time of discharge the patient was fully conscious, oriented and started talking, moving limbs and she was on daily physiotherapy with improvement with an expected good outcome. The patient was given due care and attention in the first opposite party hospital with surgery and supportive care and her condition markedly improved by timely efficacious treatment given by the third opposite party. The opposite parties attended and treated the patient with utmost care and caution in strict regard to standard and accepted medical practice and protocol.
12. The opposite party submitted that the complainant and other bystanders were always aggressive and humiliating towards the treating doctors and other medical staff in the hospital during treatment and they often created problems in the hospital even to the extent of attacking the physician doctor Pradeep who had attended and treated the patient for diabetes mellitus. In turn the physician had also filed a complaint before the police against the bystanders in connection with the incidents. The complainant is filed with a motive of causing undue hardship, and harassment to the opposite parties with frivolous and bogus allegations and cooked up fact. The complainant approached various authorities like health department, minority commission and women Commission with same complaint and the expert Committee constituted by the authorities found that the treatment given to the patient was apt and proper as per accepted medical protocol.
13. The third opposite party followed a practice acceptable to medical profession with reasonable degree of skill and care and done whatever possible to save the patient from a deteriorating condition. Re-exploration was done on the basis of manifest clinical symptoms of deterioration like drowsiness and sluggish papillary reaction and based on CT showing evidence of intracranial hemorrhage. The explanation finding showed gel form soaked, reddish and swollen with thin layer of blood seen between gel forms and there was no active bleeding. This condition is seen reported after large tumor removal and this was explained to the bystanders. The patient’s condition steadily progressed with improved conscious level, understanding the movements. The condition of hypertension was subsided and diabetics managed as per physician’s advice. Bleeding did not occur after re-exploration as otherwise the condition of the patient would have become serious leading to an unconscious state. The repeated CT scan showed reduction in hyper density supported by clinical improvement. On 08/02/2018 the scan report is obvious proof of the fact that there was no tumor or hyper density which is suggestive of stable intracranial condition supported by clinical condition of fully conscious, oriented state of the patent who started talking and moving limps. After daily physiotherapy the patient was able to sit with support and the general condition was improving. The discharge and referral to MIMS Hospital was as per request against medical advice and in consequent to unnecessary problems created by the bystanders. There was absolutely no negligence, no deficiency in-service on the part of opposite party parties at any point of time in the treatment of the patient. There is no merit in the complaint and filed purely on the experimental basis by abusing the process of law and hence liable to dismiss with cost.
14. The opposite parties denied that the third opposite party told the complainant and his sister that there was no chance for any complication to worry either intra operatively or post operatively and that the patient could have been discharged within a week after surgery is falsely cooked up for undue advantage and hence denied. The patient at the age of 69 years with Hypertension and diabetic mellitus diagnosed to have meningioma of size 7x5.5x6 cm with such co-morbid condition cannot be categorized as patient without any risk and no medical practitioner could be expected to give assurance regarding outcome of surgical treatment. The opposite parties denied that he agreed for surgery without second opinion relying on the third opposite parties assurance is misleading and so denied. The complainant came to opposite party hospital and consulted third opposite party since he was acquainted with the hospital and doctor as the patient had a history of surgery13 years back in the hospital. More over the patient was admitted on 30/11/2017 and surgery was done on 05/12/2017 and so there was enough time to take a second opinion if the complaint wants to do.
15. The opposite party denied that third opposite party disowned the findings in the scan report is misleading hence denied. The opposite party also denied that there was severe deterioration of the patient’s condition after surgery is not correct and so denied. The condition of patient deteriorated only on 07/12/2017 and its cause was diagnosed as per scanning done in the presence of doctor and re-exploration was done immediately. The opposite party submitted that there was no bleeding after second surgery and if the bleeding continued, the patient would not have shown in such a marked improvement in condition on clinical side rather she could have become unconscious with further deterioration. It is submitted that the gel form stained and swollen due bleed absorption and reddish can be imagined as appearing in the CT as hypertension reported as hemorrhage. The statement that the third opposite party did not have proper answer to the complainant and his family friends is highly ill motivated and hence denied. The third opposite party had explained the complainant and bystanders that there was no bleeding after re-explanation and CT image of hyper dense is possible image interpretations of stained and swollen gel form due to blood absorption and CT evaluation was done in the presence of surgeon.
16. The CT scan on 07/12/2017 was done in the presence of surgeon and finding of acute bleed and post-operative pneumocephalus is a surgical emergency and hence the third opposite party had proceeded with re-exploration. Intra operatively the CT findings were confirmed and the same was surgically managed as per protocol. The opposite party contended that the allegation, surgery was done even before preparing scan report is immaterial and liable to be discarded. Sending specimen for histopathology to rule out malignancy is an accepted medical practice followed in such cases. The bystanders were explained this fact and second opposite party was also discussed with them regarding the modality of treatment and clinical condition of the patient and given option to shift the patient to some other center if wanted so. But the complainant decided to continue treatment in the hospital as the condition of the patient was gradually improving with better outcome. The opposite parties denied that second opposite party responded in an irresponsible manner to the complainant and the complainant was compelled to continue treatment in the hospital as the condition of the patent was unfit to transfer to another center is not tenable and so denied. Opposite parties denied allegations of serious fault and irresponsible acts in the treatment of the patient. The opposite parties denied the averment that they refused to issue treatment records and reports and also refused to refer at first instance and later referred as per insistence of the complainant and his friends. It was submitted that opposite parties treated the patient with due spirit of dedication and sincerity and exercised reasonable skill and care in the treatment. The death of petitioner was not caused due to any act or omission on the part of the opposite parties. They denied the patient was died due to medical negligence and decency in service on the part of third opposite party and irresponsible act and deficiency in service of other opposite parties, it is highly ill motivated and so denied. The opposite parties issued reply to the complainants’ notice denying the allegations and stating true facts pertaining to the treatment of the patient.
17. The compensation claimed on the head alleging loss and is highly exaggerated and the opposite parties are not liable for the same. The third opposite party is having qualification of MS, MCH, DNB (neuro surgery) with 26 years’ experience as a consulted neuro surgeon. The fourth opposite party is working as a consultant radiologist with qualification with MD radiology, DNB, experience of 19 years and they had exercised reasonable skill and care in the scanning done for the deceased patient. Hence the prayer of the opposite parties is to dismiss the complaint with cost of opposite parties.
18 The complainant and opposite parties filed affidavit and documents. Documents on the side of complainant marked as Ext.A1 to A19. Documents on the side of opposite parties marked as Ext. B1 to B3. Ext. A1 is scan report issued from Moulana Hospital dated 07/12/2017 and scan date is 01/12/2017. Ext.A2 is Scan report issued from Moulana Hospital dated 07/12/2017and scan date is 07/12/2017. Ext. A3 is scan report issued from Moulana hospital dated 08/12/2017 and scan date is 08/12/2017.Ext. A4 is scan report issued from Moulana hospital dated 15/12/2017 and scan date is 15/12/2017. Ext. A5is scan report issued from Moulana Hospital dated 21/12/2017 and scan date is 21/12/2017.Ext. A6 is copy of notice along with postal acknowledgement and receipt dated 26/12/2017. Ext. A7 is copy of notice dated 26/12/2017 with postal acknowledgment and receipt. Ext. A8 is copy of letter issued by opposite party to the complainant dated 02/01/2018. Ext. A9 is brief treatment certificate issued by third opposite party to the complainant dated 02/02/2018. Ext. A10 copy of notice issued by complainant to opposite party dated 07/02/2018. Ext.A11 Copy of letter issued by third opposite party to the complainant dated 08/02/2018. Ext. A12 is discharge summary issued by third opposite party to the complainant dated 09/02/2018. Ext. A13 is discharge bill issued from Moulana hospital dated 08/02/2018. Ext. A14 is copy of death certificate dated 10/05/2018. Ext. A15is copy of written statement submitted by opposite parties before Minority Commission dated 09/05/2018. Ext. A16 is reply notice issued by first opposite party to the complainant dated 16/05/2018. Ext. A17 is reply notice issued by third opposite party to the complainant dated 10/05/2018.Ext. A18 is reply notice issued by third opposite party on 01/05/2018. Ext. A19 is copy of order by Minority Commission dated 13/08/2018. Ext. B1 is copy of medical board report dated 08/11/2018 along with letter of Minority Commission dated 17/09/2021. Ext. B2 is copy of order dated 02/02/2018 of Kerala State Minority Commission. Ext. B3 is photo copy of case sheet related to Smt. AssyaO.P.No.1718 and date of admission 30/11/2017. Dr. Prakashan and complainant Salim Choorapilan examined as Pw1 and Pw2 respectively. Dr. Gnanadas, opposite party No.3 examined as DW1.
19. Heard both side, perused affidavit and documents. Both side filed notes of argument also.
The following points arise for consideration: -
- Whether there was any anomaly in treating the patient from the side of opposite parties?
- Whether the re- exploration done on 07/12/2017 was after seeing the scan report on the same day?
- Whether there was any deficiency in service on the part of opposite parties in the matter
- Relief and cost?
20. Point No.1 &2
The grievance of the complainant is that due to medical negligence, the mother of the complainant lead to sad demise. The mother of the complainant was taken to the opposite party hospital for the treatment as per reference made by Dr. Johny Cherian. She was consulted and admitted by third opposite party in the hospital on 30/11/2017. The third opposite party conducted craniotomy on 05/12/2017 and on 07/12/2017 re -exploration was also done. The mother of the complainant was under gone CT scanning before Dr. Johny Cherian and thereafter from the hospital of opposite party on 01/12/2017 and on 07/12/2017. The scanning process was repeated on 15/12/2017 and 21/12/2017 also. But to the surprise of the complainant the scan report of 01/12/2017 was prepared only on 07/12/2017 and the patient was undergone surgery as early on 05/12/2017. The allegation of the complaint is that the third opposite party performed craniotomy before preparing the scanning report. The complainant also alleges there - exploration done by the third opposite party on 07/12/2017 was due to failure of surgery done by the opposite party on 05/12/2017. The opposite party has not explained why the exploration process was done on 07/12/2017. The anxiety of the complainant towards the treatment of his mother is quite natural. There is sufficient reason to have apprehension in the mind of the complainant considering the incidents from the narration of complainant. The complainant alleges that while he approached the forth opposite party for the scan report it was told that the report was not ready to provide to the complainant and that is a sufficient cause for apprehension in the mind of complainant that the third opposite party has done the surgery without seeing the scanning report.
21. But the version of the third opposite party is that he himself was present with the radiologist in the scanning room. More over the complainant approached the third opposite party with a scan report already taken as per the advice of Dr. Johny Cherian from Manjeri. The third opposite party advised the complainant to take another CT scan for clarity and satisfaction. The complainant cited Dr. Prakashan, the Associate Professor in the department of neuro surgery, in government medical college hospital, Thrissur and deposed that the CT scan procedure has got two stages. First one is scanning and the second one is preparing the report. Surgeries are conducted even before preparing the report if the surgery and scanning is done from the very same hospital. A tumor measuring size of 7.5x7.5to a patient, suffering diabetes, having the age of 69 is in very high-risk category. At the time of scanning the radiologist did not see the blood inside. They are evaluating the blood relying on the density. The blood will see in white color in scanning. During brain surgery to arrest/ prevent the bleeding, gel form, a sponge like material will be kept inside the tumor removed vacuum space. If oozing of blood occur after surgery the gel form will be soaked in the blood and it will reflect in the scanning and as if it is hyper density. The witness further deposed that there are chances of bleeding from the large tumor removal site. The bleeding can occur at the time of removal of the anesthesia tube and it can happen if the patient coughs or struggles, due to idiopathic Intra Cerebral hemorrhage may also lead to bleeding. There are active bleeding and blood staining. The gravity of the bleeding in the scanning will be assessed after core related clinical findings. PW1 stated that he has prepared Ext. B1 expert report after seeing Ext. A1 to A4 scanning reports and the treatment records of the hospital i.e. first opposite party.
22. In this complaint the only expert witness on the side of complainant examined is PW1 Dr. Prakashan and he has reported in Ext. B1 and also before the Commission that there is no anomaly in treating the patient before preparing the scanning report while the treating doctor himself present during scanning. The contention of the third opposite party is that he was present during this scanning and so the contention that he did surgery without seeing scanning report which was taken on 01/12/2017 is not correct. The Commission do not find any reason to disbelieve the averment of third opposite party that he was present during scanning.
23. The complainant rightly raised doubts about the surgery done on 07/12/2017 since the surgery done on 05/12/2017 was success. The scanning report prepared on 07/12/2017 shows that ‘acute blood and post-operative pneumocephalus in left frontal lobe ~ 7 cm size with significant mass effect around – effaced lateral ventricles and midline shift to right ~ to right 18 mm and possibly subalpine Herniation. The opposite party on verifying the scan report it was found acute blood and so re –exploration was done in an emergency. Any sort of bleeding from the surgery site definitely fatal to the patient. The third opposite party deposed that he has complied all the surgical procedures on 1stsurgery on 05/12/2017 and second surgery on 07/12/2017. The application of gel form during surgery to fill up the gap from where the tumor is extracted and it is applied to prevent complication. Acute blood means the fresh blood oozing at the surgery site. But third opposite party submitted that when the re –exploration was done it was realized that there was no fresh blood oozing. Ext. A4 to A6 shows that blood intensity has decreased and more over in the last scanning there was no blood at all. The contention of the complainant is that the version of DW1 is against the scanning report. He submitted that while he enquired with forth opposite party about the scanning report, he has stated that what are stated in scanning report are correct and the version of the opposite party No.3 is not correct. But it can be seen that the doctor who done scanning is also party in the proceedings. Version of opposite parties 2 to 6 filed together. The submission of opposite party is that the doctor who is doing the surgery will get the actual and direct conditions of the surgical site and he can well ascertain whether there is bleeding or not. In this case after seeing hyper density that the surgical site in the scan taken on 07/12/2017, the impression is that there is acute blood. Since the impression showed acute blood the re –exploration was done emergently. So it can be seen that the doctor, opposite party No.3 was present during scanning on 01/12/2017 and thereafter craniotomy done on 05/12/2017.The scan report prepared on 07/12/2017 made an impression acute blood which required an emergent re- exploration. So it can be seen that there was no lack of care, deficiency in service and negligence on the part of opposite parties. It can be seen that there was intermittent scanning and thereby opposite parties assured careful management of the patient.
24. The patient herein was admitted in the hospital on 30/11/2017 with reference from a doctor called Johny Cherian and on the next day the scanning was done from the first opposite party and thereafter on 05/12/2017 craniotomy was done. The contention of the complaint is that the third opposite party assured that there will not be any complication pre or post operatively and so no second opinion was sought by complainant. It can be seen that the patient was taken to opposite party hospital after consultation of Dr. Johny Cherian and the surgery was done 5 days thereafter. The complainant, if it was necessary would have obtained a third opinion since there was sufficient time before the complainant. The opposite party done craniotomy following all the procedures in a surgery. On 07/12/2017 due to the impression from the scan report emergent re -exploration was also done. There was scanning in regular interval. So, the procedure shows that the third opposite party was in close watching of the patient and so no anomaly can be seen in treating the patient from the side of opposite parties. It is also to be noted that the patient was more than 67-year-old at the time of taking before the opposite parties. As per medical records she was admitted under department of neuro surgery on 30/11/2017 with complaint of headache, vomiting, difficulty in walking and deterioration in the level of consciousness. The patient had which the complainant has not stated in the complaint, a previous history of brain tumor (a large meningioma)13-year-old and the third opposite party successfully managed it with the surgery from 1st opposite party hospital and she was perfectly all right till the recent development. She was consulted doctor Jhony Cherian with present symptoms and CT scan head was taken as per his advice which showed a large mass lesion (tumor) involving frontal -temporal region suggestive of meningioma (7.5.5 x6 cm) in size. As per advice of physician complainant approached neuro surgeon, the third opposite party who treated the patient earlier. It is noted that general condition of the patient was not satisfactory and on examination she was ill looking and had a history of diabetes mellitus and hypertension. The patient was disoriented, drowsy, fundus bilateral, papilledema, right heavy hemiparesis with grade 3 power. The patent was considered a high risky case in view of age, bad general condition, diabetes and hypertensive stage and neurological deficit was evident by investigation report. The case records Ext. B3 shows that the condition of the patient was discussed with complainant and other bystanders and they are well aware of the co-morbidities and risk factors involved in surgery which was the only option to save the life of patient.
25. As part of treatment re- exploration was done after two days of craniotomy and the fact the preparation of CT scan taken on 01/12/2017 was not done up to 07/12/2017 made serious concern in the mind of complainant that there was anomaly in treating the patient by the opposite parties. But as per the version of the opposite parties, if re-exploration was not done as per the scan report the condition of the patient would have become serious leading to an unconscious stage. It is also a fact that gel form stained and swollen due to blood absorption and reddish can be imagined as appearing in the CT scan as hyper dense reported as Hemorrhage. The CT scanning on 07/12/2017 was done in the presence of third opposite party and finding of acute bleed and post-operative pneumocephalus is surgical emergency and so proceeded with re-exploration.
26. The complainant has got contention that Ext. B1 report is prepared by the PW1 without hearing the complainant or considering his documents. But it can be seen that he had no other documents except scan reports and the case sheet produced by the opposite parties. So there is no merit in the contention of the complainant that in preparing Ext.B1 document no opportunity was given to the complainant. It is to be noted that the said B1document was prepared by the PW1 as per the direction of Minority Commission on the basis of complaint filed by the complainant. It has reported that Expert Committee could not find any discrepancies in any of treatment aspects. It is reported that patient general condition was week and consent was taken for all procedures including two surgeries and finally asked for discharge by relatives and at their request patient was discharged.
27. The complainant has got a case the opposite parties not provided treatment records or correct answers to the questions of the complainant. But from the documents it can be seen that the opposite party, especially the third opposite party has given reply in detail to the complainant. Ext.A9 and A12 are two replies to the complainant regarding his request. So, it will not be proper to find there was no proper response from the opposite parties. There is no merit in contention that one of the doctors of the opposite party filed a complaint against the complainant or not. The issue is that the complainant was seriously concerned with treatment of his mother. The verbal vibration during this period need not be looked in serious manner, but finding negligence or deficiency in service on the part of doctors and the opposite party are serious concern.
28. The opposite parties mentioned the aspects to be considered while dealing medical negligence as laid by our Apex court in Jacob Mathew VS State of Punjab 2005 (6) SCCI.
“Amere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical profession is called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date , the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was failure
29. It is also noted that “No sensible professional would intentionally commit and act or commission which would result in loss or injury to the persons as the professional repudiation of the person is at stake. A single failure may cost him dear in his carrier. Even in civil jurisdiction , the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counterproductive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur ‘.
30. It has held on various occasions that the subject of negligence in context of medical profession necessary calls for treatment with difference. The human body and its working is nothing less than a highly complex machine. Coupled with complexities of medical science, the scope for misimpressions, misgiving’s and misplaced allegations against the doctors and so dealing with case of medical negligence needs a deeper understanding of the practical side of medicine.
31. As settled by Apex Court in cases of medical negligence specific act of negligence has to be alleged and then proved as also as how that amounts to negligence. If doctor has taken proper line of treatment and made proper operation, even if victim dies, the doctor cannot be held to be guilty. Conclusions cannot be drawn on basis of assumption and presumption. A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable care .Negligence means failure to act in accordance with the standard of reasonable competent medical man at the time. In Maju Garge Vs Goil Hospital reported in 2005 CPJ (4) 62NC it is reported that to infer rashness or negligence on the part of a professional, in particular a doctor, additional consideration apply. A case of occupational negligence is different from one of professional negligence.
32. Hence considering the evidence in this complaint and the principles laid down by the Hon’ble Supreme Court regarding medical negligence we cannot find anomaly in treating the patient and deficiency in service on the part of the opposite parties and we find points 1,2 and 3 against the complainant.
In the light of above findings, we don’t find reason to consider the 4th point and so we dismiss this complaint.
Dated this16th day of May, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
APPENDIX
Witness examined on the side of the complainant: PW1 and PW2
PW1:Dr. Prakashan
PW2: Salim Choorappilan (Complainant)
Documents marked on the side of the complainant: Ext.A1to A19
Ext.A1:Scan report issued from Moulana Hospital dated 07/12/2017 and scan date is
01/12/2017.
Ext.A2:Scan report issued from Moulana Hospital dated 07/12/2017 and scan date
07/12/2017.
Ext A3:Scan report issued from Moulana hospital dated 08/12/2017 and scan date
08/12/2017.
Ext A4:Scan report issued from Moulana hospital dated 15/12/2017 and scan date
15/12/2017.
Ext A5:Scan report issued from Moulana Hospital dated 21/12/2017 and scan date is
21/12/2017.
Ext.A6:Copy of notice along with postal acknowledgement and receipt dated
26/12/2017.
Ext.A7:Copy of notice dated 26/12/2017 with postal acknowledgment and receipt.
Ext A8:Copy of letter issued by opposite party to the complainant dated 02/01/2018.
Ext A9:Brief treatment certificate issued by third opposite party to the complainant
dated 02/02/2018.
Ext A10:Copy of notice issued by complainant to opposite party dated 07/02/2018.
Ext.A11:Copy of letter issued by third opposite party to the complainant dated
08/02/2018.
Ext.A12:Discharge summary issued by third opposite party to the complainant dated
09/02/2018.
Ext A13:Discharge bill issued from Moulana hospital dated 08/02/2018.
Ext A14:Copy of death certificate dated 10/05/2018.
Ext A15:Copy of written statement submitted by opposite parties before Minority
Commission dated 09/05/2018.
Ext.A16:Reply notice issued by first opposite party to the complainant dated
16/05/2018.
Ext.A17:Reply notice issued by third opposite party to the complainant dated
10/05/2018.
Ext A18:is reply notice issued by third opposite party on 01/05/2018
Ext A19:copy of order by Minority Commission dated 13/08/2018.
Witness examined on the side of the opposite party: DW1
DW1:Dr. Gnanadas (Opposite party No.3
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Copy of medical board report dated 08/11/2018 along with letter of Minority
Commission dated 17/09/2021.
Ext.B2:Copy of order dated 02/02/2018 of Kerala State Minority Commission.
Ext.B3:Photo copy of case sheet related to Smt. Assya O.P.No.1718 and date of
admission 30/11/2017.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
