BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 31/10/2007

Date of Order : 30/04/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 333/2007

Between

 

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :

The 1^st complainant is the husband, 2^nd and 3^rd complainants are the daughter and son respectively of late Pavithra Kandal who died on 26-10-2006, while she was undergoing treatment at the 1^st opposite party hospital. The 2^nd opposite party is a surgeon and 3^rd opposite party is an anesthetist working in the 1^st opposite party hospital. In 2006, Pavithra was diagnosed with lump in her left breast. She consulted Dr. Sobhana Lekshmy, Medical Officer, Travancore Cochin Chemicals Ltd. As per the direction, Pavithra underwent mammogram of both breasts at Amritha Institute of Medical Sciences, Kochi in September 2006. After perusal of the report, Dr. Shobhana directed her to approach the 1^st opposite party hospital. Accordingly on 04-10-2006, Pavithra consulted the 2^nd opposite party. Subsequently on 09-10-2006 and on 16-10-2006, she consulted the 2^nd opposite party in continuation on 26-10-2006 at about 10-20 a.m. she underwent excision biopsy of the left breast lump under general anesthesia. At about 5.45 pm., the hospital authorities informed the 1^st complainant that Pavithra died in the operation theatre. As per the postmortem report, she died of pheochromocytoma and its complication precipitated by anesthetic administration and surgical stress. Pavithra died due to negligence and complication arising due to improper administration of anesthesia and wrong and negligent diagnosis without proper care. The complainants caused to issue a lawyer notice to the opposite parties demanding to pay Rs. 5 lakhs by way of compensation. The 1^st and 3^rd opposite parties replied raising untenable contentions. Thus, the complainants are before us seeking direction against the opposite parties to pay Rs. 5 lakhs as compensation and Rs. 20,000/- towards costs of the proceedings.

2. Version of the 1^st and 3^rd opposite parties :

On 04-10-2006, the patient consulted the 2^nd opposite party for complaints of pain and swelling of her left breast. Initially, she was given a course of antibiotics and she continued to improve. Since the swelling persisted she was admitted in the hospital and on 26-10-2006 under general anesthesia the small breast lump was removed without any complications. After the procedure, the patient continued to have a tachycardia and raised blood pressure and developed severe acute left ventricular failure with pulmonary oedema, despite receiving positive pressure ventilation. She was given supportive treatment by mechanical ventilation, CPR, IV medications, intra cardiac injections etc. Despite best collective efforts, the patient died by 5.45 p.m. Pheochromocytoma is a rare tumor which is asymptomatic and hence cannot be detected by routine standard pre-operative investigations. She died due to cardiac failure precipitated by high levels of catecholamines secreted by the tumour during the surgical procedure. There was no negligence or laches or deficiency in service on the part of the opposite parties. The opposite parties request to dismiss the complaint.

3. Defense of the 2^nd opposite party :

Smt. Pavithra Kandal consulted the 2^nd opposite party on 04-10-2006 with the complaints of painful swelling on her right breast of one month duration. She gave history of having investigated at Amritha Institute of Medical Sciences, Kochi, where an FNAC (Fine Needle Aspiration Cytology) and mammography was done. Since the lump appeared suspicious they advised her biopsy of the same. The 2^nd opposite party after examining the patient advised antibiotics. Though, the swelling reduced a residual lump persisted and so an excision biopsy of the retro-mammary lump was advised under general anesthesia. On 26-12-2006 the surgery was completed without any complication. During the procedure, the patient developed persistent tachycardia and hypertension which did not settle with medication or termination of general anesthesia. She suddenly developed pulmonary oedema and caused severe congestive cardiac failure. Unfortunately, she did not respond to treatment and died at 5.45 p.m. The postmortem reported the presence of an undetected asymptomatic pheochromocytoma of the adrenal gland which was responsible for the lethal outcome following a minor surgical procedure under general anesthesia. The presence of pheochromocytoma could not be detected pre-operatively as the patient did not have any symptoms of the disease. The 2^nd opposite party had taken reasonable care in the treatment of the patient and has adopted the standard procedure in her treatment. There is no negligence or deficiency in service on the part of the 2^nd opposite party. The 2^nd opposite party requests to dismiss the complaint.

4. The 1^st complainant who represents the 2^nd and 3^rd complainants was examined as PW1 and Exts. A1 to A13 were marked on the side of the complainants. The 2^nd and 3^rd opposite parties were examined as DWs 1 and 2 respectively. Exts. B1 and B2 were marked on the side of the opposite parties. Argument note was filed by the 2^nd opposite party. Heard the counsel for the parties.

5. The points that emanated for consideration are :-

1. Whether the complainants are entitled to get a compensation of Rs. 5 lakhs from the opposite parties?

2. Whether the complainants are entitled to get Rs. 20,000/- by way of costs of the proceedings from the opposite parties?

6. Point No. i. :- The following facts are not disputed by the parties :

1. The 1^st complainant is the husband and the 2^nd and 3^rd complainants are the daughter and son respectively of the deceased Pavithra Kandal.

2. Late Pavithra Kandal had consulted the 2^nd opposite party on 04-10-2006 with swelling on her left breast.

3. The 2^nd and 3^rd opposite parties are the surgeon and the anesthetist working in the 1^st opposite party hospital.

4. The 3^rd opposite party administered anesthesia and the breast lump removal surgery was performed by the 2^nd opposite party on 26-10-2006.

5. The said Pavithra succumbed due to the reasons stated in Ext. A11 postmortem certificate immediately after the surgery ie. on 26-10-2006 at 5.45 p.m.

7. The learned counsel for the complainants vehemently contended that the opposite parties failed to conduct the necessary pre-operative tests to ascertain whether the patient had any risk to undergo the operation. He further argued that the negligence and laches on the part of the opposite parties lead to the death of said Pavithra and the opposite parties are answerable for the same. The counsel relied on the following decisions of the Higher Judiciary :

1. V. Krishna Rao Vs. Nikhil Super Specialty Hospital and Anr. 2010 (5) SCC 513 : 2010 KHC 4333.

2. Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others. 2010 KHC 4094 : 2010 (3) SCC 480

3. Nizam's Institute of Medical Sciences Vs. Prasanth S. Bhananka (2009) CPJ 61 (SC).

4. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 58

8. According to the counsel for the opposite parties, Pavithra Kandal died of pheochromocytoma and its complications precipitated by anesthetic administration and surgical stress as evidenced by Ext. A11 postmortem certificate. It is stated that the standard and routine pre-operative investigations were done on the patient. Further it is stated that the presence of pheochromocytoma could not be detected pre-operatively on the patient, since she did not have any symptoms of the same. The counsel relied on the following medical literature :

1. Oxford text book of medicine Volume II, 3^rd Edition. 1996, Page 2553.

2. Harrison's Principles of Internal Medicine – 2, 11^th Edition. 1987, Page 1775.

3. Schwartz, Principles of surgery, 6^th Edition. 1994, Page 1586.

4. Sabiston Text Book of Surgery, Vol. I, 13^th Edition. 1980 Page 680.

5. Oxford Text Book of Surgery, Vol. I, 1^st Edition. 1994 Page 782.

6. Bailey and Loves Short Practice of Surgery, 24^th Edition. 2004 Page 819.

    

9. Ext. A11 is the postmortem certificate dated 18-05-2007. Ext. A11, the laboratory findings and cause of death states as follows :

“Laboratory Findings :

Histopathological report showed pheochromocytoma of right adrenal, firocystic disease of breast, pulmonary oedema and a small laiomyoma of uterus.”

Opinion :

“Based on the post-mortem findings and results of Laboratory Examination, I furnish my final opinion as follows :

The deceased died of pheochromocytoma and its complications precipitated by anaesthetic administration and surgical stress.”

Evidently the insistence of DW1, the surgeon on a postmortem goes to show that medical ethics had to be held and it has proved as well.

10. Now, the focal point is whether the opposite parties have conducted the necessary pre-operative tests on the patient. Evidently, she had undergone various tests even before the consultation at the 1^st opposite party hospital. The result of both tests conducted at AIMS, Kochi as per Ext. A1 reads as follows :

Cytology report dated 29-04-2006

FNAC Breast : Suggestive of an inflammatory

lesion. Kindly rule out tuberculosis.

Mammography Bilateral Breasts dated 21-09-2006

A dense lesion in the retroareolar region of the left breast (BIRADS Category 4). Highly suspicious lesion – needs FN AC/biopsy correlation.

Fibro Cystic disease of both breast.

11. Thereafter, in the 1^st opposite party hospital, they had conducted pre-operative tests vice blood test (Page No. 53 in Ext. B1) ECG (Page No. 53 in Ext. B1/Ext. A4), Blood pressure (Page 36 of Ext. B1) evident from Ext. B1 case sheet.

12. According to PW1, except pain or her breast there was no symptom present on her.

13. On a perusal of the documents on record and depositions of the witnesses, it can be seen that no symptom of pheochromocytoma was present in the patient during the treatment at the 1^st opposite party hospital or even prior to the treatment at Travancore Cochin Chemical's Medical

wing and AIMS, Kochi. So, the contentions of PW1 cannot be sustained.

14. It is worthwhile to note that the learned counsel for the 2^nd opposite party has gone to take pains to the extend of presenting invaluable information on the medical texts before us which reads as follows :

“Oxford text book of medicine volume II, 3^rd edition 1996, page 2553

Phaeochromocytoma is a rare tumor. Most doctors are unlikely to meet more than one patient with the condition in their lifetime. A large general hospital will admit only one patient on average each year.

Harrison's Principles of Internal Medicine, 11^th edition, Page 1775.

Postmortem series indicate that the majority of pheochromocytomas are unsuspected clinically and that in many of the cases the tumor is related to the fatal outcome.

Schwartz, Principles of surgery, 6^th edition 1994, Page 1586

Sudden death may occur in asymptomatic patients commonly during the stress of pregnancy, surgery, or trauma.

Sabiston Text Book of Surgery, volume 1, 13^th edition 1980 page 680.

There is probably no neoplasm in man that expresses its presence more dramatically than pheochromocytoma. Patients may present in hypertensive crisis associated with sweating, palpitations, headache and even myocardial infarction, cerebra vascular accident or death, or they may present with diabetes mellitus or symptoms suggestive of hyperthyroidism.

Oxford Text Book of Surgery, Volume I, 1^st Edition 1994 page 782.

Unfortunately, upto one-third of cases are not diagnosed during life and in many of these cases, death is associated with general anesthesia for an unrelated procedure.

Bailey and Love's Short Practice of Surgery, 24^th Edition 2004 page 819.

Patient with pheochromocytoma may be intermittently or continuously symptomatic or even asymptomatic, patient will sometimes present with acute cardiovascular collapse, stroke, arrhythmia during a surgical procedure under general anesthesia or in labour with uncontrollable hypertension.”

15. Before parting, we feel it poignant to cite the decision of the Hon'ble Apex Court in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others (Supra), para 94 and 95 are read as follows :

“94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:

 

1. Negligence is the breach of a duly exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

3. The medical professional is expected to bring 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.

4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

6. The medical professional is often 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. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

8. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.”

16. In view of the above, we are only to hold that the complainants have failed to prove any negligence on the part of the opposite parties. The complaint is dismissed.

Pronounced in open Forum on this the 30^th day of April 2011.