Date of filing:03.03.2018 & 05.03.2018

                                                   Date of Disposal:13.03.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 13^th Day of March 2023

PRESENT

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH: PRESIDENT

Mr K. B. SANGANNANAVAR: JUDICIAL MEMBER

Mrs DIVYASHREE M: LADY MEMBER

APPEAL NOs.354 & 357 of 2018

C O M M O N O R D E R

BY HON’BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT

1. These two appeals are filed under Section 15 of Consumer Protection Act, 1986, one by OP2 and another by OP1 in CC/1867/2012, aggrieved by the order dated 03.02.2018 passed by II Additional District Consumer Disputes Redressal Forum, Bengaluru (for short District Commission and the parties arrayed as in the consumer complaint)

2. The Facts of the case of the complainants are stated below:

Complainants child Advaith of age 01 year 04 months was admitted to OP1 Hospital because of his ill health wherein OP2 and OP3 who were working under OP1 on the date of admission.The child was diagnosed with “Bilateral Scrotal Swelling with right inguinal Hernia”.The Child was operated on 05.01.2011 @ 5.30 am under the care of OP2 being Pediatric Surgeon assisted by OP3 being Anesthetist. After surgery the child was transferred to ward and was in good response and was responding and identifying the parents and relatives on the lap of his mother.It is alleged by the complainants that after the surgery OP2 left the hospital and did not take post operative care and had telephonically informed duty nurse to give penicillin based drug i.e., Augmentin – 300 mg injection intravenously. On the telephonic instructions of OP2, a duty nurse without giving test dose administered antibiotic, within few minutes of drug infusion the child’s condition started deteriorating and lost consciousness and was announced dead at 5.35 pm on 05.01.2011.But the complainants were informed about the death of the child only at 7:00 pm.Thus complainants raised consumer complaint on 17.09.2012 before the Forum below alleging deficiency in service on the part of OPs for their negligent act of injecting highly allergic drug of Augmentin for a dosage of 300 mg without giving test dose and have killed their child by negligence. Upon service of notice OP1 to OP3 appeared through learned counsel and contested the matter.OP1 in its version states that there is no specific allegation made against the hospital and submits that the doctors of the hospital attended the child to monitor from morning to evening but despite of all efforts by a team of doctors, the child succumbed to adverse drug reaction and was dead.OP2 in its version narrated the facts of events occurred on 05.01.2011 and further states that complainants ought to explain, what a STAT does is, again, complainants ought to explain what a test does is, and how they can claim that no test does have been administered. OP2 further alleges that the actual fact is that as on instructions the Duty Nurse, reconstituted a drip of injection Augmentin @ 11:15 am and gave a test does and after properly observing and ensuring that there was no adverse reactions, completed the full dose as a drip, by 11:45 am.Long after this, at 11:55 am, well after the drip was completed, the child started showing abnormal behaviour and was restless.Immediately, as it was an emergency, resuscitation started by the available doctors, including the OP3 without waiting for OP2. OP3 in its version submits that there is no negligence anywhere during the surgery or post surgery recovery.After completion of Surgery @ 8:10 am, the Anesthesia was reversed and the patient was woken up.The role of OP3 was complete at this stage.The patient was shifted to recovery room for further observation and observing that there were no complications as a result of the successful surgery and anesthesia, the patient was shifted out to the operation theatre complex, to the day care ward for planning the discharge.This would show that the surgery and anesthesia were not to be blamed as a cause of the death of the patient.Thus OP1 to OP3 in their versions denies all the allegations made by the complainant and submits that there is no negligence on the part of OPs in the medical process and prays for dismissal of the complaint. The Forum below having been enquired in detail into the complaint, recorded reasons in favour of complainant and passed an order on 03.02.2018 by directing OP1 and OP2 jointly and severally are liable to pay a sum of Rs.10,00,000/- towards compensation to the complainants within 30 days from the date of order.Failing which, OP1 and OP2 shall pay interest @ 12% p.a. on the amount from the date of complaint till the date of realization of the amount.OP1 and OP2 jointly and severally are directed to refund a sum of Rs.30,750/- received towards medical expenditure to the complainants.OP1 and OP2 shall also pay a sum of Rs.10,000/- towards litigation expense to the complainants.OPs are directed to comply the above order within 30 days from the date of the order.Complaint against OP3 is dismissed.

3. Aggrieved by the said Order, these two appeals are filed, one by OP1 in Appeal No.357/2018 on the ground that the impugned order of District Forum is drawn up on a total mis-appreciation of facts, pleadings and materials evidence on record particularly with regard to the relevant treatment rendered to the complainants child and another by OP2 on the ground that, the findings of the Forum below are based only on a part of the findings of KMC, and had been passed without considering the entire documents on record.

4. Commission heard learned counsels and perused the impugned order passed by Forum below in CC/1897/2012, dated 03.02.2018.  Now Commission has to decide whether impugned order passed by the Forum below is contrary to facts and law as appealed by OPs?

5. It is undisputed fact that Master Advaith was admitted to hospital for surgery on 05.01.2011.  It is also not in dispute that the said surgery was successfully completed and was shifted to recovery room for further observation.  Also there is no dispute regarding consciousness of child after surgery and were identifying complainants and its grandparents. The only dispute is regarding infusion of Augmentin-300mg injection to the child without test dose, due to which the child started showing abnormal behaviour and was restless and developed severe reaction due to acute drug reaction causing acute Hemolyser with Thrombocytopenia and Pul Edema and was announced dead. 

6. On keen perusal of rival contentions of the parties in this case firstly we have to examine herein whether a test dose is required before infusion of Augmentin-300mg injection which is said to be penicillin based drug? 

7. OP1/Apollo Hospital/Appellant in A/357/2018 had produced medical text/literature, Basic & Clinical Pharmacology, 11^th Edition, published by McGraw-Hill Medical: 11 edition (July 31, 2009) authored by Bertram G Katzung, Susan B Masters, Anthony J Trevor, in respect of adverse reactions of penicillin based drug, wherein the author is of the view as follows:

Adverse Reactions: The penicillins are remarkably nontoxic.  Most of the serious adverse effects are due to hypersensitivity.  All pencillins are cross-sensitizing and cross-reacting.  The antigenic determinants are degradation products of penicillins, particularly penicilloic acid and products of alkaline hydrolysis bound to host protein.  A history of a penicillin reaction is not reliable; about 5-8% of people claim such a history, but only a small number of these will have an allergic reaction when given penicillin. Less then 1% of persons who previously received pencillin without incident will have an allergic reaction when given pencilln.  Because of the potential for anaphylaxis, however, penicillin should be administered with caution or a substitute drug given if the person is a history of pencicillin allergy.

8. Commission examined the above literature. Commission also examined the medical records placed before us.  On perusal of medical records could see the Admitting Medication Order and Documentation Record dated 05.01.2011 wherein at page-64 could see that the allergies to the child is mentioned as None and was advised medication of Inj. Augmentin Duo 300mg/N/STAT at about 11:15 am and in page-66 of the same document when the child started reacting to the said Inj. could see that the allergies to the child is mentioned as Not Known. It is pertinent to note here that both records are signed by OP2/Dr.Anand Alladi/Appellant in A/354/2018.  Thus on looking into these documents we can draw inference that prior to infusion of Inj. Augmention Duo – 300mg OP2 doctor does not know whether there was any history of drug allergies to the child and so had mentioned None.  It is only when the child started reacting adversely to the said Inj. OP2 doctor started to talk about the allergies to the child as Not Known. In our view, when pencillins are cross-sensitizing and cross-reacting OP2 doctor could have examined the child before infusing the injection which has the combination of pencillin drug since penicillin should be administered with caution or a substitute drug given if the person is a history of penicillin allergy as mentioned in the above medical text/literature.  Therefore, in our view, OP2 doctor could have examined the child about his history of drug allergies or if the history of drug allergy is not known OP2 doctor could have given the test dose (A small dose of a medication used to ascertain whether the patient is able to tolerate it) before infusion of such Inj. which has pencillin.

9. Complainants have stated that OP2/Dr.Anand Alladi had telephonically informed duty nurse to give Augmentin-300mg injection intravenously.  OP2 doctor in his version stated that he has instructed a duty nurse in the hospital of OP1 to administer Augmentin Inj. intravenously but he stated that he instructed to give test dose. On reading through the medical records we could find the Progress Notes dated 05.01.2011 maintained by Doctors of OP1 Hospital wherein at about 10:45am there is a note that Child in level 2 recovery, Vitals maintained, Tolerated water orally and Plan: Inj.Augmentin Duo 300mg IV Stat and discharge on. Syp. Augmentin Duo 4ml BD for 4 days and Syp. Crocin 6ml PO QID for 3-4 days and review after 1 week and was signed by OP2/Dr.Anand Alladi. Other pages of the Progress Notes talks about the child behaviour due to adverse reaction of Inj., till declaring death at 5:35pm.  There is also a Progress Notes maintained by Duty Nurses wherein could see that the Nurses Note starts about 11:55am wherein it is noted that Pt. Received from OTR at 11:55am, while receiving Pt. was restlessness and abnormal behaviour and on ambu. Ventilater, Pt. put on ventilater support.  On going through the entire Progress Notes maintained by both Doctors and Duty Nurses of OP1 Hospital we could not find any entries regarding any instruction given by OP2/Dr.Anand Alladi to Duty Nurse of the OP1 Hospital or could not find in the Nurse Note regarding following up of instructions given by OP2/Dr. Anand Alladi as to test dose. Therefore OPs failed to establish any sought of telephonic communication through which OP2 has instructed the duty nurse as to the test dose before infusing Inj. Further Complainants in their complaint alleged that the material documents in the case file was tampered and fabricated by OP2 and OP3 at material places in the records in collusion with OP1 to suit their convenience and to cover up their gross medical negligence leading to the death of Advaith. On looking through the entire records we could find the utterance of test dose of Augmentin-300mg Inj. in the Recovery Chart as well as Admitting Medication Order and Documents Record.  In the Recovery Chart in the column of Medication we could see that between 10:15am and 10:30am there is a note at about 11:15am of directing Inj. Augmentin-300mg I.V. and NS after test dose of I.V. given. Just below the nurse note at 10:30am there is another nurse note at about 11:55am.  Thus on examining this document we can conjecture that there is tampering of case file of patient since prima facie proves that there is an insertion of time and medication between 10:15am and 10:30am.  If the case file of patient was written as and when as per the progress of the patient then the note of medication in the Recovery Chart at about 11:15am to inject Augmentin-300mg would be between 10:30am and 11:55am and not between 10:15am and 10:30am as tempered in Recovery Chart.  Thus on looking the whole medical records of patient Master Advaith in OP1 Hospital we could not find any entries regarding giving test dose to the child.  The documents which utter about the giving of test dose cannot be considered since those documents prima facie appears to be tampered as explained supra. Therefore, in our opinion OP1/Apollo Hospital/Appellant in A/357/2018 has to be held liable for the death of the child Master Advaith since OP1 hospital left OP2/Dr.Anand Alladi to tamper the case file of the patient of their hospital and started protecting OP2 doctor to cover up the whole scenario. Thus Complainants has to be held right in contending that the case file was tampered and fabricated by OP2 in collusion with OP1 to suit their convenience and to cover up their gross medical negligence leading to the death of Advaith.

10. Further Karnataka Medical Council in its order dated 06.09.2011 observes as –

“..... It is agreed by both the parties that death of the child was due to Anaphylaxis though no Post Mortem was done. The Respondents were not available for Consultation when the child went into Anaphylaxis.  Telephonic or mobile communication could not be established.  There were no senior doctors available to attend the emergency.  By the time, the respondent arrived it was too late.  The entire episode is construed by Karnataka Medical Council as Deficiency in Service and Violation of Code of Medical Ethics”

     Further complainants had filed WP.No.19441/2015 before Hon’ble High Court of Karnataka, seeking directions to the State and also to the Concerned Authority at Bangalore Medical College and Research Institute (BMCRI), to take action against OPs based on the enquiry report dated 01.06.2011. By order dated 04.04.2019, the Hon’ble High Court was pleased to dispose the Writ Petition with a liberty to complainants to file a representation to the State Government and direction to the State to consider the representation and to pass appropriate order after giving opportunity to both sides, in accordance with law.  In compliance of the directions by Hon’ble High Court in WP No.19441/2011, complainants have submitted the representation on 11.11.2019 before Appellate Authority and Secretary to Government of Karnataka, Medical Education Department, Bengaluru.  The Appellant Authority in Appeal No.214/2011 while passing orders made observations in para-11 to 13 as -

11.   This enquiry report was submitted by N Prabhakar, CAO, BMCRI and Dr.Riaz Basha, Associate Professor, Community Medicine, BMCRI as per the direction of the Government.  As per Enquiry Report, that the attendance register of respondent for the date 05.01.2011, was tampered by over writing the signature with CL.  But there is no finding with respect to who has tampered the register.  The Enquiry report states that the respondent has admitted that he has operated the child between 6:45am to 8:00am on 05.01.2011 at Apollo Hospital but it was prior to his duty hours.  He had taken CL to attend his personal work and to attend Conference Work.  He had given his leave letter on next day so the attendance register changed.  In the Enquiry Report, the statement of Medical Superintendent was recorded, which states that he has not received the leave letter from the respondent or he does not know anything about tampering of register.

12.      At the time of hearing, Petitioners reiterated the above mentioned facts and were relying upon the Enquiry Report dated 01.06.2011, for initiating action against the respondent.

13.       Whereas the OP had denied the allegations of medical negligence and submitted that he is not drawing the Non-Practice Allowance and hence as per Government Order he is permitted to work at Apollo Hospital after duty hours.  In his submission, respondent has admitted that he has operated the child at Apollo Hospital and left the hospital around 8:25am after recovery of the child to Vani Vilas Hospital.  He had completed his rounds and then left the hospital to organise the Conference to be held on 15^th and 16^th Jan 2011.  Further he admits in writing as follows: “Since I had gone to attend to a Private Hospital Patient, due to an emergency, during work hours at Vani Vilas Hospital, I applied for leave and informed the concerned.  I submitted the leave letter also, when I went to Vani Vilas Hospital after that.”  Respondent had further submitted that the petitioners are harassing him by filing various complaints against him before various Forums and he had faced 06 enquiry which were conducted against him and has prayed for dismissal of the petition.

     I have perused the documents submitted by both parties.  Enquiry Report dated 01.06.2011 has not been challenged.  On perusal of said report, it is clear that Attendance register of respondent for the date 05.01.2011, was tempered by over writing the signature with CL.  Respondent has given the explanation that he had taken the CL for personal work but his explanation was not supported with documentary proof like Leave Application to the Medical Superintendent etc.  The statement of Medical Superintendent that he has not received the leave letter will go against the Respondent.

     From 2011, several direction were given to BMCRI to submit the Report.  From the documents available it can be observed that BMCRI has filed its reports, but the issue here is whether the action of respondent attracts any disciplinary action or not.  On careful perusal of the documents available, and from the Enquiry report dated 01.06.2011, it is clear that the attendance register has been tampered and the statement of Medical Superintendent and the statement of respondent does not tally.  Hence I have come to conclusion that prima facie charge is proved beyond reasonable doubt.

     With above such observations Appellate Authority and Secretary to Government of Karnataka, Medical Education Department, Bengaluru on 16.02.2022 passed orders by directing Dean and Director, BMCRI is here by directed to initiate the disciplinary action against the respondent as per the BMCRI Byelaws and submit the compliance report to the government.

11. Thus on looking to the observations made by KMC as well as Appellate Authority and Secretary to Government of Karnataka, Medical Education Department we are of the view that OP2/Dr.Anand Alladi has to be held guilty for the negligent act done by him.  Also on facts of the case as discussed above, we are of the view that OP1/Apollo Hospital/Appellant in A/357/2018 and OP2/Dr.Anand Alladi/Appellant in A/354/2018 both has to be held not only negligent but also deficient in rendering medical service to the child, since OP1 hospital allowed OP2 doctor to tamper the case file of the patient Master Advaith to cover up the whole scenario and OP2 showed negligent in giving instruction to the duty nurse to inject Augmentin-300mg Inj. to 01 year 04 months child without test dose due to which the child lost his life.

12. In view of the above such conclusion and in consideration of entire documents placed before us, we are of the view that complainants have established the medical negligence on the part of OP1 Apollo Hospital and OP2 Dr.Anand Alladi, as such have to be made liable to pay compensation for the loss of dependency and sufferings of parents of the child/complainants. Complainant no.1 in his affidavit has stated that his wife complainant no.2 had underwent medical intervention and struggled hard to conceive Master Advaith after 05 years of their marriage.  The Forum below awarded to pay a sum of Rs.10,00,000/- towards compensation to the complainants without awarding any interest, which in our view is not justifiable, since the trauma which they have faced, cannot be explained in terms of any words, since the child ultimately died.  The Forum below could have awarded adequate compensation along with interest, since the child died on 05.01.2011, we have to compensate the parents, considering the pecuniary and non-pecuniary damages only in terms of money, since we cannot give back the child by ordering either OPs or else one.

13. In view of above such conclusion, Commission proceed to dispose off both Appeal Nos.354 and 357 of 2018 by modifying the impugned order in the following terms:

1. OP Nos.1 and 2 are jointly and severally are liable to pay a sum of Rs.10,00,000/- as compensation along with interest @ 06% p.a. from the date of complaint till realization.
2. OP Nos.1 and 2 are jointly and severally are directed to refund a sum of Rs.30,750/- received towards medical expenditure.

3. Further OP Nos.1 and 2 are directed to pay Rs.50,000/- towards cost of litigation and other miscellaneous expenses incurred by complainants.

14. The Amount in deposit is directed to be transferred to Forum below for needful.

15. Keep the original order in A/354/2018 and copies thereof in connected A/357/2018 to complete the record.

16. Send a copy of this Order to the District Commission and parties to the appeal.

Lady Member                       Judicial Member                          President

*GGH*