BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
FA 929 of 2008 against C.C. 342/2007, Dist. Forum-III, Hyderabad
Between:
E. N. Rammohan Rao
S/o. Late Veerabhadraiah
Age: 57 years, Business
R/o. 20-40-81/3/1
NMDC Colony, East Anand Bagh
Malkagiri, Hyderabad. *** Appellant/
Complainant.
And
1) Hyderabad Nursing Home (P) Ltd.
Rep. by its Managing Director
31, Basheerbagh, Hyderabad.
2) Dr. Srinivasulu
Consulting Oncologist
Hyderabad Nursing Home
31, Basheerbagh, Hyderabad.
3) Global Hospital
Rep. by its Managing Director
Lakdikapool, Hyderabad. *** Respondents/
Ops
Counsel for the Appellant: M/s. V. Gouri Shankara Rao
Counsel for the Respondent: M/s. A.V. Shesha Sai (R2)
M/s. T. Rajendra Prasad (R3)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE TENTH DAY OF OCTOBER TWO THOUSAND ELVEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
***
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that his wife late Smt. E. Padma along with him went to R1 nursing home on 22.10.2006 where R2 Consultant Oncologist on his advise got all the tests conducted as recommended by him, and on his request she was admitted in R1 hospital on 29.10.2006. Prior to it she underwent laparatomy. She was operated on 1.11.2006 and due to his negligence complications were developed, and her condition was deteriorated on 2.11.2006. On 5.11.2006 she was put on ventilator. He was advised to shift the patient to R3 Global Hospital on 6.11.2006 for commercial reasons. At about 9.00 p.m. she passed away. He was charged about Rs. 83,000/- by R3 Global Hospital. This is all stage managed in order to cover up negligence, and also to gain monetary advantage. Though her survival was remote R2 got her admitted in R3 hospital which abundantly supports R2’s intention to make additional amount of Rs. 3,83,000/-. Alleging deficiency in service and medical negligence he claimed Rs. 3 lakhs towards compensation, Rs. 1 lakh towards damages and Rs. 83,000/- towards charges collected by R3 hospital in all Rs. 4,83,000/-.
3) R1 Hyderabad Nursing Home resisted the case. It alleged that the complainant was not a consumer. In fact it is one of the well recognized hospitals in the twin cities, and has been running since 1973 without any complaint or controversy. After, the tests were done, she was admitted in the hospital. R2 surgeon has utilized the services of the hospital. In fact it did not claim any surgeon fee except the amount incurred for performing operation. There cannot be any negligence on its part nor dereliction of duty. There was no deficiency in service rendered by it. Therefore it prayed for dismissal of the complaint with costs.
4) R2 equally resisted the case. He stated that he is a qualified surgical Oncologist for the last 22 years. After consulting him more than six months prior to 22.10.2006 and on the advise of Dr. T. Ravindra, Consultant Radiation Oncologist he conducted surgery. She suffered from cervical cancer and received radiation therapy in the year 1992. She later underwent Hysterectomy in the year 2000. Due to that, again she under went repair of incisional hernia in the year 2001. The history suggests that she was suffering from chronic intestinal obstruction for which she consulted different physicians. After investigations were made by them she was brought to him.
He explained the nature of the problem resulting due to previous radiation therapy and two surgeries. Surgery and conservative management were given as options. The risks of surgery in view of previous history of radiation therapy and two surgeries were explained to them. After six months i.e., on 22.10.2006 they came to him and explained that the patient was suffering from severe abdominal pain after any oral intake. She was on liquid diet and I.V. fluids only. She was on pain killer injections being administered by her husband who is a paramedic. They informed that she can no longer endure the suffering from severe pain. Therefore they opted for surgery accepting all the risks. After conducting all the investigations viz., colonoscopy, Barium Enema prior to surgery to exclude colonic obstruction, and after controlling the blood pressure she was readmitted on 29.10.2006 and surgery was conducted on 1.11.2006. He was assisted by Dr. N. R. Baldwa, Surgeon and Dr. P. Surender, Anesthesiologist. The patient’s distal small bowel was obstructed and was stuck in the pelvis where previous radiation therapy was given. There were some adhesions between previous surgical scar and small bowel. They were released by a simple bypass between small bowel and large bowel viz., (Ileotransverse Colostomy). This was the standard procedure in patients with such intestinal obstruction after radiation therapy. This bypass was done in between two non-irradiated bowel segments. However, she developed mild breathlessness in the evening of 4.11.2006. She did not encounter any problem. She was treated symptomatically. On 5.11.2006 she was put on ventilator after taking consent from the complainant. Chest X-Ray was taken on 6.11.2006 which revealed Bilateral Patchy Pneumonia. Thereupon her condition was stabilized through ventilator. As it appeared that she may require ventilation for some more time, it was suggested to shift the patient to a higher centre with better intensive care facilities as they did not have provision for prolonged ventilation. Her husband himself has chosen Global Hospital (R3) . There was no negligence on his part.
In fact she developed faecal leak from the drain in the morning of 7.11.2006 i.e., the 6th post operative day. She was re-operated on the same day which revealed a small bowel perforation proximal to the site of previous anastomosis with faecal matter in peritoneal cavity, well healed Ileotransverse colostomy. The perforation was closed and an ileostomy was done to bypass the perforated area, and she was stabilized. Suddenly there was fall in her blood pressure and all the efforts made to revive her blood pressure with drugs proved futile, and was expired on 8.11.2006 at 8.45 a.m. In fact she underwent second surgery on 7.11.2006 at R3 hospital and was in intensive care unit through out, and various investigations were performed. Blood component therapy was administered. Therefore there was no negligence on his part. The complainant had suppressed many of the facts, and therefore prayed for dismissal of the complaint with costs.
5) R3 Global Hospital did not choose to contest the matter and therefore it was set-exparte.
6) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A45 marked while R2 deposed as a witness.
7) The Dist. Forum after considering the evidence placed on record opined that the deceased had earlier undergone radiation therapy in the year 2002 as she was suffering from cancer of the cervix, and that she had undergone Colonoscopy on 30.10.2006, and that due to number of ailments she had, all of them contributed to her death. In the light of history of radiation therapy, development of perforation causing faecal leak cannot be attributed to negligence of the doctor. No expert was examined to show that the line of treatment adopted by R2 was wrong. Holding that there was no negligence on the part of R2 dismissed the complaint.
8) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that after conducting the operation when the deceased had breathlessness he could have sent her to a Pulmonologist. After keeping on ventilator he ought not to have shifted her to R3 hospital, more so, when there was remote chances of survival of the patient. No reasonable practitioner in the field would suggest for such a course. It is for purely commercial reasons, and therefore prayed that the complaint be allowed.
9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
10) It is an undisputed fact that R2 is a surgical Oncologist attached to R1 hospital. His credentials are not in dispute. It is also not in dispute that complainant’s wife Smt. E. Padma was suffering from cancer of cervix. For the first time she consulted R2 on 22.10.2006 complaining severe abdominal pain etc. He advised certain diagnostic tests to be conducted. The tests were conducted at KIMS a different hospital, and along with investigation reports they came again to him on 25.10.2006. Basing on these tests R2 advised surgical procedure for which she was admitted into R1 hospital on 29.10.2006. It is also not in dispute that she underwent hysterectomy in the year 2001. It is also not in dispute that the deceased had consulted R2 prior to six months when she was suffering from cancer of cervix, and received radiation therapy. On 1.11.2006 R2 conducted surgery after taking consent from them vide Ex. A45. They found that distal small bowel was obstructed and was stuck in the pelvis where previous radiation therapy was given. There were adhesions in between previous surgical scar and small bowel. The procedure that was adopted on 1.11.2006 was to release adhesions by a simple bypass between small bowel and large bowel viz., (Ileotransverse Colostomy). This was the standard procedure in patients with such intestinal obstruction after radiation therapy. This bypass was done in between two non-irradiated bowel segments. When she developed breathlessness, on 4.11.2006 and 5.11.2006 she was put on ventilator. He alleges that in the morning of 6.11.2006 he got the chest X-Ray which reveals Bilateral Patchy Pneumonia the cause for her breathlessness. Then she was stabilized on ventilator. As it appeared she was requiring ventilation for some more time, and that R1 was not having enough resources for prolonged ventilation he suggested for shifting. The very complainant had chosen R3 as he was also a consultant for R3 hospital. No monetary gain was made by R2 by getting her shifted to R3 hospital.
11) The complaint of the complainant was that his wife was originally diagnosed as suffering from gutt obstruction, and due to negligent operation conducted by R2 she developed faecal leak. It led to complications culminating her death.
12) The complainant himself admitted earlier ailments, and was exposed to radiation therapy etc. to his wife as she was suffering from cancer of cervix. R2 surgical Oncologist deposed as to the line of treatment given to her. He gave his opinion in view of hysterectomy and subsequent exposure to radiation therapy there were adhesions in abdomen resulting in faecal leak. When she had developed pneumonia she was shifted to R3 hospital where there is a provision for better facilities. The complainant did neither examine any expert nor stated in his affidavit evidence that the line of treatment given by R2 went in wrong lines. R2 in Ex. A45 case sheet, religiously noted the entire treatment and the procedure adopted at the time of operation and the subsequent treatment. No imputation or suggestion was made that he committed a mistake or that he went wrong while administering treatment. Evidently the deceased had been on radiation treatment at least from the year 2002 till her admission into R1 hospital on 29.10.2006. In the operation notes at page No. 83 the following findings were noted.
i) Small bowel adhesions to previous scar.
ii) Distal ileum collapsed and struck in pelvis with frozen pelvis
iii) Small bowel distended up o distal ileum.
iv) No appreciable other pathology.
The procedure that was adopted at the time of operation was also made a mention. The very complainant had filed the treatment that was administered by R3 after she was shifted from R1 hospital. The case sheet is marked as Ex. A1. In the coloumn of history the following facts were noted :
“Patient underwent laparotomy and ileotransverse colostomy at Hyderabad Nursing Home, Hyderabad on 1.11.2006. Patient re-explored for fecal leak identified in the morning of 7.11.2006 re-exploration done at 4.30 p.m. on 7.11.2006 after stabilizing and informed consent. Surgery revealed small bowel perforation proximal to ileo transverse colostomy, faecal peritonitis, normal well healed ileo transverse colostomy.
Surgery: Closure of small bowel perforation, peritoneal toilet and proximal loop ileostomy done. Patient developed sudden hypotension at 11.30 p.m. on 7.11.2006. Patient treated with triple ionotropic support, despite which patient’s blood pressure continued to fall and she expired at 8.45 a.m. on 8.11.2006.”
13) When R3 had mentioned the above nothing was suggested to him that he was at fault or negligent while conducting the operation or in the course of treatment. The complainant alleges that shifting of the patient to R3 hospital was not beneficial to the patient, except to R2, who was also a consultant in R3 hospital to make money. When R2 was not in a position to revive the patient the question of shifting her to some other hospital on the ground that it has better facilities was not in the interests of the patient. He was made to spend an amount of Rs. 83,000/- towards medical charges without any treatment whatsoever.
14) A perusal of Ex. A1 maintained by R3 hospital proves beyond doubt that she underwent surgery on 7.11.2006 at R3 hospital. She was kept in ICU and on ventilator through out her stay. Various investigations were performed to assess the problem. Blood transfusion was made besides administration of medicines. In view of her critical condition and having suffered from cervix cancer it cannot be said that bowel perforation, faecal leak could be held to be due to negligent operation conducted by R2.
15) The learned counsel for R2 relied a decision of Hon’ble Supreme Court in Kusum Sharma Vs. Batra Hospital & Medical Research Centre reported in (2010) 3 SCC 480. Their Lordships’ after considering the entire case law observed :
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said : ‘It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.”
69. This court in a landmark judgment in Jacob Mathew v. State of Punjab & Another (2005) 6 SCC 1 while dealing with the case of negligence by professionals also gave illustration of legal profession. The court observed as under:-
“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)”
74. In another leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to and quoted as under:-
“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is
whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
The court per Lord Scarman added as under:-
"A doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
"22. In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (see: Jackson and Powell on Professional Negligence, 3rd Edn. paras 1-04,1-05 and 1-56).
88. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, this Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. 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.
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:-
I. Negligence is the breach of a duty 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.
II. 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.
III. 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. 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.
VI. 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.
VII. 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.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. 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.
X. 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.
XI. 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.
16) To sum up, the deceased underwent surgery for adhesions in hernia later radiation therapy for cervix cancer in the year 2001. R2 is a surgical Oncologist who treated her when she had abdominal pain, originally it was diagnosed as gutt obstruction. R2 had conducted operation and he could know that distal small bowel was obstructed and was stuck in the pelvis where previous radiation therapy was given. There were also adhesion between previous surgical scar and small bowel. The surgical procedure involved in the case was releasing the adhesions and procedure of Illeotransverse Colostomy which is a bypass between two non-irradiated bowel segments commonly administered for such patients. After operation when she developed breathlessness she was put on ventilator. Her chest X-Ray revealed bilateral patchy pneumonia. For better treatment she was shifted
to R3 hospital where she succumbed on 8.11.2006. R2 has explained cogently about the treatment administered by him. The complainant could not refute the evidence either by examining another expert or relying medical texts to show that the treatment administered by him was in incorrect lines. We do not see any negligence much less medical negligence in the instant case. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
17) In the result the appeal is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
10/10/2011
*pnr
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