BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
Between
M.Pratap Reddy S/o Nagi Reddy
aged about 47 years, Occ: Agriculture
R/o Shivampet Village, Pulkal Mandal
Medak District, A.P.
Appellant/complainant
A N D
1. The Managing Director
MNR Hospital Fasalwadi Village
Sangareddy Mandal, Medak Dist.
2. ENT Department in MNR Hospital
rep. by Dr.Subramanyam & Dr.Krishna
Respondent/opposite parties
Counsel for the Appellant Sri R.Manik Reddy
Counsel for the Respondents Sri P.Venkat Reddy
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT M.SHREESHA, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE NINETH DAY OF NOVEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The unsuccessful complainant is the appellant.
2. The facts of the case as narrated by the appellant are that on 1st May,2005 the appellant had taken his daughter, Malleshwari to the respondent no.1 hospital for treatment of her throat problem. The appellant’s daughter was admitted to the respondent no.1 hospital on 10th May,2005 for the purpose of undergoing operation and after the operation till 11 a.m. the next day, i.e., 11.5.2005, the patient was alright. A rash was observed at 7 a.m. on 12th May,2005 and the respondents neglected to take notice of the rash resulted in it became more aggressive and at 10 A.M. on 12th May,2005 she was taken again to the operation theatre on the premise that the earlier operation performed on 10the May,2005 had failed.. The appellant’s daughter was taken out of the operation theatre at 2 P.M. and immediately she was shifted to Osmania General Hospital even without obtaining consent of the appellant. The doctors at Osmania General Hospital declared at 4.15 p.m on the same day that the appellant’s daughter was brought dead.
3. The operation on both occasions failed due to negligence of the respondents no.2. The appellant incurred an expenditure of `3,998.88/- towards medical expenses and x-ray and other relevant tests. The reports and case sheet are in the custody of the respondents who despite a request for furnishing of the copies, denied to provide the documents to the appellant. The respondent attempted to discharge their liability by way of taking the dead body of the patient to Osmania General Hospital. The appellant demanded the respondents to pay the medical expenses that he had incurred for treatment of his daughter along with compensation. Thereafter, the appellant got issued notice through his advocate and filed the complaint seeking a sum of `5 lakh with interest and costs.
4. The respondents filed common counter contending that the appellant’s daughter was admitted to the respondent no.1 nursing home for thyroid swelling on 10th May,2005 but not twice on 10th May,2005 and 12th May,2005. She was treated at post operative ward from 10th May,2005 to 12th May,2005 before she was shifted at the request of her relatives, to Osmania General Hospital by the respondents by making transport arrangement and medical care. On the next day of the surgery, the patient had taken liquid diet and solid diet as also she was kept on oral drugs. A general surgeon with experience of 30 years but not an ENT specialist performed the surgery and there was a speedy recovery during the post operative stage. The appellant had not paid any service charges, operation charges, bed charges, nursing charges etc.,to the respondents. The appellant had not requested for furnishing of the copies of the documents. After consulting the patient’s attendants, the respondents shifted the patient to the Osmania General Hospital in their ambulance under the care of a qualified doctor and nurse. The respondents insisted on the post mortem examination of the body to know the cause of death for which the appellant and his relatives refused by citing no reasons. There was no negligence on the part of the respondents.
5. The appellant was examined as PW1 and the documents, ExA1 to A11 were marked. On behalf of the respondents, A.Suhas was examined as RW1 and ExB1 was marked.
6. The appeal is filed contending that the respondents took the dead body of his daughter to the Osmania General Hospital and got registered FIR at P.S. Afzulgunj and had seen that no post mortem examination was conducted on the body of the appellant’s daughter and that the respondents tampered wit the case sheet to suit their case.
7. The points for considerations are:
1. Whether there was any medical negligence on the part of the respondents in treating the appellant’s daughter?
2. To what relief?
8. POINT NO.1 The appellant’s daughter was admitted to the respondent no.1 hospital on 2.5.2005 and prior to that she approached the respondent no.1 hospital on 15.4.2005 and was treated as outpatient for thyroid swelling. The doctors of the respondent no.1 hospital suggested her to undergo surgery for the complaint of thyroid. RW1 has deposed that he worked with the respondent no.1 college from December 2004 to July 2005 and on 10.5.2005 Dr.Ranga Reddy performed surgery, hemi-thyroidectomy. He had assisted Dr.Ranga Reddy during the course of operation and the operation was successful. During the post operative stage the condition of the patient was stable. She was advised not to take anything by mouth. According to him, the appellant’s daughter had not died as a result of surgery but she died due to some other complications.
9. On 15.4.2005 when the patient was taken to the respondent no.1 hospital, she was referred to surgical OP suspecting her to be suffering from adenoma thyroid. On 2.5.2005 the patient was admitted to the respondent no.1 hospital. The case sheet indicates that the patient was suffering from solitary nodule right lobe and on 3.5.2005 she was suggested to undergo surgery and anesthetist was requested to take necessary steps. On 9.5.2005 the patient was posted for thyrodectomy and on the same day pre-anesthetic check up was done. Further, the case sheet shows that under general anesthesia hemithyrodectomy was done on 10.5.2005 and after the operation the condition of the patient was stable. One unit of whole blood after cross matching was suggested to be transfused. At 5.30 p.m. on 11.5.2005, it was recorded that the patient vomited for five times and experienced loose motions for two times. At 7 a.m. on 12.5.2005 rash was observed and physician was called for. The physician recorded that he observed rash all over the body of the patient.
10. The negligence, if any, of the doctor during the stage of operation is to be considered in the light of the allegations and counter allegations in the shape of notice and reply notice and subsequently in the form of the pleadings. It is the contention of the appellant that the respondent operated upon his daughter twice for the first time on 10.5.2005 and subsequently on 12.5.2005. By implication the appellant challenges the authority of the respondent in conducting the operation without there being a consent either from him or his daughter. The case sheet shows that the appellant’s daughter was admitted on 2.5.2005 and hemithyroidectmy was done on 10.5.2005, on 11.5.2005 Dr.A.Suhas advised for intake of soft diet plus plenty of oral fluids which was noted at 5.30pm that the patient consuming juice brought from outside. This endorsement was made at 5.30 p.m. only after noting that the patient was vomited for five times and experienced loose stools for two times. This situation can lead to two inferences, the respondent no.1 hospital instructed the appellant to get the juice from outside and secondly they had not cared the way juice was given to the patient. RW1 has categorically stated that on the instructions of the doctors, juice was given by the attendants of the patient. The statement of RW1 is in contradiction to what is stated in 3rd paragraph of reply notice wherein it was stated that the patient consumed fruit juice given by her parents without any notice of the staff of the respondent no.1 hospital.
11. It is interesting to see RW1 deposing about the cause of death of the appellant’s daughter particularly in the absence of any postmortem examination being conducted over the body of the daughter of the appellant. In his cross examination, he has stated that he had not gone through some of the documents filed in the case. In the light of his statement that he had not gone though some of the documents and no postmortem examination was conducted on the body of the appellant’s daughter, his evidence cannot be considered to be helpful to the defence of the opposite party. In fact, he has assisted the appellant to prove the initial burden rested on him. He has stated that the condition of the patient was good at the time of admission in the respondent no.1 hospital and after the operation, the patient was given apple juice by her attendant as per the instructions of the doctor which led to vomiting for five times and loose motions for two times. The witness attempted to state that the apple juice brought from the market was the cause of vomitings and motions experienced by the patient. In such a situation, the respondent no.1 hospital is to be held negligent in advising the patient’s attendants to get the apple juice from the market.
12. In regard to the post operative stage treatment of the patient, it is the consistent version of the appellant that his daughter was taken to the operation theatre at 10 a.m. on 12.5.2005 and at about 2 p.m. she was taken out of the operation theatre and from there she was shifted to the Osmania General Hospital. The contention has its origin in the second paragraph of the notice dated 24.6.2005. The respondents had not chosen to give reply to the allegation of the appellant except stating that the appellant did not agree for postmortem examination on the body of his daughter and hurriedly he had performed her funeral.
13. The patient case sheet indicates an insertion at page 127 between the findings recorded at 7 a.m. and 8.45 a.m. that the BP was 90/40 at 10 a.m. After recording finding at 10 a.m., again it was noted as 8.45 a.m. and recorded findings that the patient was cyanose and experienced laboured breathing with hemotoma at surgical scar and erhythromotose rash all over body. Thereafter the findings were recorded at 11.00 a.m., 12 noon, 12.30 p.m. and 1.00 pm. However, again under the findings recorded at 1.00 p.m. it was shown that at 9.45 a.m. the patient was intubated and in spite of recording the findings in progressive manner at page 129 of the case sheet it was shown at 9.15 a.m. on 12.5.2005 the anesthetist was called to attend to the post operative case of hemithyrodectomy as the patient was suffering from respiratory distress. This haphazard manner of noting made in the case sheet on 12.5.2005 would strengthen the contention of the appellant that the respondents were rendering negligent service. It can be said that the appellant was given to understand that the respondents performed the operation two times.
14. The radiologist of respondent no.1 hospital has opined that there was no abnormality in thorasic cage and lungs of the patient. According to him and as per the report dated 2.5.2005 issued by him all vital organs of the patient were normal except in C.P. angles where there was no fluid the presence of which is considered to be essential. The report dated 14.5.2005 issued by thyrocare Mumbai goes to show that on reference of the respondent no.1 hospital total tyroido thyronine (P3), Total Thyroxine (P4) and Thyroid Stimulating Hormone (TSH) tests were conducted by adopting CLIA method. The value of total tyroidothyronine was 29 ng/dL against the normal range 60-200, value of thyroxine was 2.50 microns/dL. The normal range was from 4.5-12 and TSH was also within the normal range, .84 m/IU/Ml as the normal range was .30 to 5.5.
15. RW1 has stated that all the medicine administered to the patient were done so only after the test dose was conducted. He has admitted that the conducting of the test dose was not recorded in the case sheet. It was suggested to him that due to injecting the medicine by the nurse and the liquid food to the patient by the attendants the patient developed rash which was however denied by the witness. He has stated that blood clot was found at the operation site of the patient and it was at the time of applying the sutures. He has stated that on information he came to know that she was taken in the ambulance accompanied by an anesthetist and duty staff nurse. He has admitted that the certificate issued by Osmania General Hospital shows that the patient was brought after she was expired.
16. The opposite parties pleaded that ENT surgeon had not operated the appellant’s daughter that it was a general surgeon with 30 years of experience who had performed the surgery over the appellant’s daughter. There is no mention of the name of the surgeon who actually performed the surgery. When it is the case of the opposite party that a surgeon i.e., general surgeon has conducted the operation RW1 has stated that it is Dr.Ranga Reddy who performed the surgery on the appellant’s daughter and he assisted the surgeon. RW1 has admitted that the surgeon’s signature is found in some papers and is not found in the other papers. He has not stated where the surgeon has signed and on which document the surgeon has omitted to sign. When it is the case of the opposite party that the surgeon who performed the operation was Dr.Ranga Reddy, it is difficult to understand as to why the opposite party had not examined the surgeon who according to them had actually performed the surgery. RW1 who stated to have assisted the surgeon at the time of performing the surgery, has not stated the complications developed after the surgery due to which the appellant’s daughter died.
17. The appellant’s daughter was treated in the post operative ward and during that time she was given apple juice and while she was on medication particularly the drugs which were intravenously injected. The contention of the appellant is that operation was performed by the respondents, Dr.Subrahmanyam and Dr.krishna who according to the appellant are ENT surgeons but not the surgeon qualified to perform any thyrodectomy. As aforesaid, the respondent no.1 hospital has come up with the plea that Dr.Ranga Reddy a general surgeon performed the surgery. The appellant has challenged the competency of the doctors who performed the surgery on his daughter. In the absence of the any suggestion to RW1 that it is the respondent no.2 doctor but not Dr.Ranga Reddy assisted by RW1 performed the operation, the contention of the appellant, it is difficult to give any due consideration. However, the fact that the respondent no.1 has not shown any reason for not examining Dr.Ranga Reddy who said to have performed the operation, cannot be ignored in the light of imputation of lack of competence of to the surgeon, by the appellant.
18. At the cost of repetition it can be said that the medicine injected to the patient was not made test dose and it is evident by the statement of RW1 that they had not mentioned in the case sheet that test dose was done before the medicine was injected to the patient. The other fact that indicates negligence on the part of the respondent no.1 is that from 11.5.2005 at 11.p.m. to 7 a.m. on 12.5.2005 no doctor attended on the patient. This fact is established by the evidence of RW1 that in case a doctor attended on the patient, it would be mentioned in the case sheet. In the case sheet, no name of the doctors has been mentioned in regard to the treatment rendered to the patient at the late night hours on 11.5.2005 till the morning of 12.05.2005 Another fact contributing to the negligence of the respondent no.1 is the instruction by its doctors and nurses to the attendants of the patient to get the juice and food from outside of the hospital. It is pertinent to note that no doctor attended on the patient till the morning of 12.5.2005 despite the fact that the patient who had undergone any thyroidectomy hardly 48 hours thereto, suffered from vomitings and loose motions which has to be considered as a serious concern during the post operative stage. The evidence of RW1 coupled with the case sheet would establish the deficiency in service on the respondent no.1 hospital. There is no evidence on record that the respondent no.2 doctors had performed the operation or treated the daughter of the appellant. The role of respondent no.2, as such is not within the ambit of any deficiency in service as alleged by the appellant.
19. The appellant might have been given the impression by the way the respondent had handled the patient on 12.5.2005 particularly the respondent no.1 not caring for the attendance of the surgeon and the anesthetist in time. The anesthetist was called to be present at 9.15 a.m. when the patient was shown to have experienced BP of 80/70 at 7 a.m. It is interesting to see RW1 stating that they had instructed their staff and attendants of the patient not to give anything to her by mouth and by way of taking somersault RW1 stating that they advised the staff and attendants of the patient to give liquid diet and semi solid diet. The statement of RW1 gives any amount of scope that the care and caution required to be exercised by the attending doctors was not to the standard in the circumstances of the case. The respondent no1 or the attending doctors had not diagnosed or at least attempted to diagnose the cause for the rash which at the initial stage, appeared at a part of the body of the patient and subsequently spread all over her body.
20. Apart from the negligence exhibited by the doctors of the respondent no.1 hospital during the period immediately after the surgery was performed, the carelessness in the treatment rendered to the patient is manifest by the evidence of RW1 that they had shifted the patient to Osmania General Hospital at the request of the parents of the patient which does not find place in the case sheet. It is pertinent to note that the appellant was kept in darkness all through the stages of the treatment rendered to the patient on 12.5.2005 at the respondent no.1 hospital till she was shifted to Osmania Hospital. The doctors at Osmania Hospital declared the patient brought dead and in the circumstances, the respondent no.1 had failed to bring on record the condition of the patient while she was being taken in the ambulance from the respondent no.1 hospital to the Osmania Hospital. The appellant had been contending that his daughter died at the respondent no.1 hospital and the doctors of the respondent no.1 hospital shifted the dead body of his daughter to the Osmania Hospital.
21. The test of medical negligence for the first time was laid down in Bolam Vs Freirn Hospital Management Committee reported in 1957 (2) All England Law Reports, 118. The principle in Bolam’s test was accepted by the Supreme Court in Indian Medical Association Vs. V.P.Shantha and others reported in (1995) 6 SCC, 651 and ever since it was reminiscent of its influence in pleuthora of cases such as Spring Meadows Hospital Vs Harjol Ahuluwalia, I (1998 CPJ, 1, Charan Singh Vs Healing Touch Hospital, III (2000) CPJ, 1, Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Jaspal Singh and others, II (2009) CPJ, 92 (SC). However, this concept was if not “ uprooted” got diluted in the course of time as can be seen in V.Kishan Rao Vs. Nikhil Super Specialty Hospital,III(2010) CPJ, 1.
22. In Kishan Rao’s case (supra), the Apex Court has approved the various inllustrations where the principle of res ipsa loquitor was made applicable on the basis of decided cases, by the author, Michael Jones, at page 314 of his Book “The Treaties on Medical Negligence”. The illustration No.10 as referred to, by the Supreme Court, deals with a situation where the principle of res ipsa loquitor was made applicable to the facts of the case “where an infection following surgery in a well staffed and modern hospital remained undiagnosed until the patient sustained crippling injury”. The principle of res ipso loquotor is squarely applicable to the facts of the present case in the circumstances where immediately after the surgery, the rash developed at particular spot and spread over to the entire body of the patient remained undiagnosed.
23. The appellants’ daughter was aged 15 years at the time she was admitted to the respondent no.1 hospital. The notes of the case sheet would show that she was not suffering from any ailment other than the symptoms of swelling over in front of the neck since two months prior to the date of operation in the respondent no.1 hospital. As the appellant’s daughter was a minor and the appellant has not stated whether she was a student or not and in the light of our conclusion that the respondent no.1 hospital was negligent in rendering treatment to the appellant’s daughter, we are inclined to award an amount of `1,50,000/- as compensation on all counts.
19. In the result the appeal is allowed by setting aside the order of the District Forum. Consequently the complaint is allowed directing the respondent no.1 to pay an amount of `1,50,000/- together with costs of `2,000/-. The order be complied with within a month from the date of receipt of the copy of the order; failing which the respondent no.1 shall be liable to pay interest @ 9% per annum from the date of order till payment. The complaint against the respondent no.2 is dismissed. No costs.
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PRESIDENT
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MEMBER
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MEMBER
Dt.09.11.2010
Kmk*
