Date of Filing : 20.03.2003
Date of Order : 02.03.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.166/2003
WEDNESDAY THIS 2ND DAY OF MARCH 2016
P. Viswanathan,
Flat No.1-A Coral Sudha,
No.16, Eldoms Road,
Chennai 600 018. ..Complainant
..Vs..
1.Dr.S.Subramaniam,
2-C, 23, Desikachan Road,
Chennai-1.
2. Dr.Umesh Metha,
The Director,
H.M. Hospital,
No.130, St. Mary’s Road,
Chennai 600 028. ..Opposite parties
For the Complainant : Mr.K.Narasimhan
For the 1st Opposite party : M/s. N.L. Rajah & another
For the 2nd opposite party : Exparte.
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.1,01,000/- towards medical expense incurred to Mrs. Saroja Viswanathan and to pay a sum of Rs.10,00,000/- as compensation and also to pay a sum of Rs.2,000/- as cost the complaint to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The complainant’s wife was experiencing Post Menopausal Vaginal bleeding in the beginning of January 2002 and Dilation and Curettage ( D&C) for Vaginal bleeding was performed in Public Health Centre. Subsequently she recovered completely. Vaginal bleeding stopped and the Pathology reports from the D &C were normal. Subsequently she underwent for follow up testing for the enlarged right kidney and gail stones, wherein the results was negatived, she was completely Asymptomatic from both kidney and Gail bladder aspects. As she was completely Asymptomatic nothing needed to be done at the time. Thereafter she consulted Urologist Dr.S.Subramaniam, the 1st opposite party who was affiliated with Sri Ramachandra Medical College Hospital, on 20.2.2002. After going through the previous records of the complainants wife, he recommended that a phyelouesteroplasty be performed. He outlined two possible approaches i.e. laproscopic surgery and open surgery. He has recommended for open surgery Cholecystectomy could be done at the same time as both the gall bladder and the kidney were on the right side. He also advised that surgery being simple, she need not to worry and can be discharged within 3 days. The surgery was proposed to be done at HM Hospital, the 2nd opposite party. At that point the complainant enquired about the laparoscopic surgery, which the 1st opposite party has assured that there is no difficulty in performing the same. The surgery was performed on 22.2.2002 at about 4.00 a.m. for both Pyeloureteroplasy and Cholecystectomy. After the operation she was brought to the private room instead to a well-equipped recovery room. No details were available as to whether any method was employed to prevent deep vein thrombosis of Cait veins. She developed shortness of breath on 23.2.2002 at 8.30 p.m., and it was informed to the duty doctor at 2nd opposite party hospital. The duty doctor informed the complainant that he need not be alarmed, about the development but nothing was done to prevent this. The 1st opposite party did not come to evaluate the patient. Dr.Subramaniam came to H.M. Hospital on 24.2.2002 and Anesthetist was called from Tambaram, since the anesthetist in the team of surgery was out of station. He recommended that a bronchoscopy be performed. Dr.Raja Sebastian was called to perform bronchoscopy and after examining the patient, he advised against bronchoscopy and recommended that she be placed on ventilator support. HM Hospital did not have the Ventilator or ICU, and she was asked to take to the Kaliappa Hospital for Ventilator support. When ventilator was not immediately available there she was immediately admitted in ICU and was changed to RSR Hospital, where she was given ventilator support. The 1st opposite party should have ascertained the availability of ventilator support at Kaliappa Hospital before she shifted. The delay in shifting to RSR Trinity Acute Care Hospital further complicated the patient’s condition. On 25.2.2002 her heart beats rate increased to 130 per minute and on 27.2.2002 in the early morning she developed severe shortness of breath, and she continued to be in ICU with ventilator support with administration of low Molecular Weight Heparin. On 1.3.2002 her Oxygen Saturation was very low at 85%, even on large amounts of inhaled Oxygen. In the early morning of 3.3.2002 she constantly complained of hunger and asked for milk, which could not be given without doctors consultation. Between 5 and 6 a.m., the complainant’s wife went into cardiac arrest and passed away. Though the major surgery was performed by the 1st opposite party in the small hospital with absolutely no infrastructure for post-operative care or to handle the smallest complication that could potentially arise post –operatively, the HM Hospital did not have a recovery room, which ultimately resulted in death of the patient. The hospital should have taken due care and responsibilities or providing proper theatre with all facilities for operation and due to deficiency in service on the part of the 1st and 2nd opposite party, the complainant lost his wife, though the complainant incurred expenses of Rs.1,01,000/-. Due to the demise of his wife, the complainant has personally suffered without any help and children losing their mother is also unbearable. Hence the complaint praying for a direction to the opposite party to pay the medical expenses incurred at Rs.1,01,000/- along with compensation of Rs.10 lakhs and cost of Rs.2000/-.
Written Version of 1st opposite party is briefly as follows:
2. The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite party had explained about the great deal about the treatment to the patient even before starting treatment in surgery. Pre-operative clearance was obtained from competent physician, who had named her for general anesthesia. The patient was on tablet replace one per day, and had suppressed the vital medical information like the presence of reactive airway disease. The patients suffered from two problem i.e. calculus of gail bladder (2) kidney pelvic ureteric function. The standard care required by the surgeon and the treatment to be adopted was reflected in para 4 and 5 of the complaint. The incidence of pulmonary embolism is low in patients in India. The surgery being upper abdominal pelvic and not in pelvic. No history of any clinical evidence of deep vein thrombosis post menopausal bleeding in patient. As such the opposite party decided to not to initiate the antiagulants theraphy pre-operative. The surgery was performed by a team of appropriate doctors as mentioned in para 6 of the version. There was no element of negligence involved at any stage of management. All the decisions were taken to safeguard the interest of the patient. The post-operative respiratory complication was handled with sincerity and involvement. The same was diagnosed immediately and sought for remedial measures. After post operation her vital parameter was normal. The patient was nursed in a single room with monitor with the staff nurse accompanied the patient to Trinity FCU and organized proper ventilation which stabilized the patient well. When after 48 hours patient was found to have clinical features of pneumonia newer antibiotic was instituted; advice was obtained from senior physician possession of a super specialty medical gastro enterology degree and also from cardiothoracic surgeon Bronchoscopic Aspiration was to be planned with the latter is advice, it was decided to take her to ICU of Chennai Kaliapa Hospital Dr.Krishnamoorthy critical care specialist trained in England attended on Mrs.Saroja Viswanathan. There the patient was initiated with endotracheal tube and connected to Bairns Circute ventilated with Ambus bag. This type of ventilation equals that done by other mechanical ventilators. As the critical care specialists felt that the patient should be ventilated at ICU at Trinity he himself along with the staff nurse accompanied the patient to trinity FCU and organized proper ventilation which stabilized the patient well. The preventive to avoid respiratory complications were taken preoperative day turning the patient to the sides appropriate management of the respiratory disease had been done namely identifying the underlying pathological status and reversing it. The management of acute hypixia had been done with precision using ventilatory strangeries avoiding aiveolar overdistention, maintain F102 (Forced Expiratory volume in 1 second) of less than 0.6 using sufficient PEEP to prevent significant tital recruitment. The complainant was taken to Trinity ICU by this opposite party in this car and shown around. The complainant agreed to undergo the treatment at Trinity during this period two relatives of the patient who were doctors were at closest quarters to the patient and was informed of all steps taken to treat the patient and they were fully satisfied with the course of treatment undertaken. The opposite party denies the allegations of the complainant liberating the patient from mechanical ventilation and optimizing oxygen delivery had been done meticulously. There has been no shock through the period. Decreased lung compliance and increased alveolar permeability are the two dreaded sequalae of acute respiratory distress syndrome. Efforts had been taken to avoid these two at every step of respiratory care. There had been no evidence of cardiogenic pulmonary oedema at any time during the care. Even the unfortunate and to the patient occurred at a time intended to wean totally from the respiratory support patient could be progressively weaned from respiratory support progressively in two stages namely using the ventilator i.e. Controlled ventilation. After the first time withdrawal of ventilatory support she was sent to the ward. Throughout all these she was communicating with the attenders and medical personnel. All these would not had been possible had there been a continuing surgical problem. The fact that at Trinity Hospital after 3 days stay the patient could be extubated and was shifted to the ward shows that she was responding to the treatment it is unfortunate that her respiratory rate again went up. The blood tests done at Trinity (D dimmer and Florin degradation products) were highly nonspecific for pulmonary embolism. A high D dimmer is an indicator of clot breakdown and can happen whenever a clot is formed especially in the post surgical state. This opposite party states that Acute Respiratory distress syndrome from Aspiration pneumonitis does not occur because of a surgical decision or technique or neglect as alleged. HM Hospital has necessary facilities that were required for the surgery that were conducted on the complainant’s wife. Thus the opposite party denies the allegations made in paragraph 16 of the complaint. This opposite party denies the allegation that he did not examine kidney of whether it could have been resolved through simple procedure of Cystoscopy. Cystoscopy is only an investigative procedure. This complaint is false and frivolous and is liable to be dismissed in limine with exemplary cost.
3. Even after receipt of the notice from this forum in this proceeding, the 2nd opposite party did not appear before this Forum and did not file any written version. Hence the 2nd opposite party was set exparte.
4. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A9 were marked on the side of the complainant. Proof affidavit of 1st Opposite party filed and Ex.B1 and Ex.B2 were marked on the side of the 1st opposite party.
5. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs asked for?.
6. POINTS 1 & 2 : -
Perused the complaint filed by the complainant, the written version filed by the 1st opposite party, proof affidavit filed by complainant, 1st opposite party and the documents Ex.A1 to Ex.A9 filed on the side of complainant and Ex.B1 and Ex.B2 filed on the side of 1st opposite party and considered the both sides arguments.
7. There is no dispute that the complainant’s wife namely Saroja Viswanathan was diagnosed by the 1st opposite party Dr. A Subramaniayam, the consultant neurologist, that she was suffering from two problems one calculus of gall bladder and kidney pelvic ureteric function, after taking necessary medical tests, according to the advice given by the 1st opposite party with consent of complainant and the patient, the said Saroja, open surgery i.e Cholecystectomy was performed to the said Saroja Viswanathan by the 1st opposite party in the 2nd opposite party hospital on 22.02.2002 at 4.A.M. On 23.02.2002 at 8.30 A.M. the said patient was developed post operative shortness of breath on 24.02.2002 she was shifted to Kaliyappa Hospital. Further moved to Trinity care hospital on the same day for the purpose of ventilation support. From 25.02.2002 the patient condition was critical and died at 6.30 A.M. on 03.03.2002. The hospital records Ex.A4 to Ex.A6, are also proves the above said facts.
8. Whereas the complainant has raised allegation against the opposite party that at the time of consultation for the treatment the 1st opposite party though there was another course of surgery laparoscopy surgery was available which can be performed as suitable for the patient, the 1st opposite party has not adopted the said surgery, but suggested for another method of the open surgery and had performed the same is not proper. But the 1st opposite party has resisted the said allegation by saying, considering the patient condition as well as the nature of the disease, he had opted for the open surgery i.e Cholecystectomy was a proper and suitable surgery to perform for the said suggestion, complainant and the patient as well as the patient’s relative one Dr. T.D. Swaminathan, had also given consent. Further the 1st opposite party also explained that pyeloplastry is the surgery undertaken to cure the disease of the patient is proper, though the other method of surgery removal of gall bladder laparoscopically was a wide spread surgical craft but not laparoscopy pyeloplastry (done to correct ( R ) kidney drainage tract’s obstruction.) Laparoscopy itself has got it own complication. Therefore as contended by the opposite party mentioned above the 1st opposite party is a qualified skilled consultant and urologist, the said decision taken by him for the surgery of open surgery instead laparoscopy is of the reason know to the medical process on considering the nature of the disease and the surgery was to be done to the patient, cannot said to be improper or find fault with him. Further contrary to the above reasons stated by the 1st opposite party the allegation made by the complainant that the decision taken by the 1st opposite party for conducting open surgery instead of laparoscopic surgery is not proper is not acceptable as there is no medical evidence on the side of complainant for the said allegations and the complainant also not denied that they have given consent for the said open surgery.
9. The complainant has raised further allegation against the opposite parties on the treatment given for the said patient Saroja, post operation session in the 1st opposite party it was found that there is no availability of ventilation facility in the 2nd opposite party hospital, which was needed by the patient due to breathing problem who undergone for the open surgery / major operation. For want of the said ventilation facility, the patient was taken at her crucial stage in a serious condition, from the 2nd opposite party hospital to one Kalliyappa Hospital on 24.02.2002, where she was kept for some time in ICU, even due to non availability ventilation facility, again on the same day she was shifted to Trinity Hospital, where she was provided continuous post operative session treatment with ventilation for her breathing problem and she was collapsed on 03.03.2002. for the non availability of basic facility of ventilation facility for the patient who undergo major surgery, the 1st opposite party Doctor who has conducted the surgery and the 2nd opposite party, the hospital are responsible for the hard ship and inconvenient caused to the patient and which leads to the death of patient Saroja, as such the 1st and 2nd opposite parties are liable for the deficiency of service.
10. Whereas the 1st opposite party has contended that the complainant and his wife, the patient have suppressed the vital medical information that the presence of reactive airway disease, which was informed only later the 2nd day of the post operative care. The patient had been habitual user of nebuliser-puf when she had been living in Delhi. However when the patient was found suffering from breathing problem while under the post operative session, she was given all necessary treatment with consultation with the doctors expert in the said field, and when it was felt that ventilation to be provided to the patient, in order for recovery of respiratory problem due to the non availability of ventilation in the H.M. Hospital the 2nd opposite party, she was shifted to the nearest available hospital to the Kaliappa hospital, considering the condition of the patient and there she was treated in ICU for some time and then shifted to Trinity Hospital on the same day and there she was given continuous post treatment with ventilation facility, and she was died at 6.30 A.M. on 3.3.2002. The 1st opposite party has further stated the non providing of ventilation for the breathing problem occured to the patient in 2nd opposite party hospital and Kaliappa Hospital was not a main cause for the death of the patient. Therefore there is no deficiency in the treatment given by the 1st opposite party and the facilities available in the 2nd opposite party hospital, as such the 1st and 2nd opposite parties are not liable for any deficiency of service.
11. However on perusal of the Discharge summary of the H.M. hospital Ex.A4 it is found that the patient Saroja who has under gone open surgery on 22.02.2002 in 2nd opposite party hospital was treated as in patient post operative treatment till 24-02-2002 and due to her sudden suffering of breathing problem at 2.00.P.M and since the oxygen level was reduced to below 80% at 5.30 P.M. the decision was made and the patient was shifted to other hospital (Kaliappa hospital), but no detail of necessary treatment for respiratory problem was mentioned in the discharge summary, Therefore contrary to this the 1st opposite party’s contention that he has given necessary treatment for the respiratory problem in the 2nd opposite party hospital itself is not acceptable. But despite of mentioning in the said discharge summary the patient was shifted for the want of ventilation to Kaliappa hospital where ventilation facility is not available. It shows even the shifting of patient by the 1st and 2nd opposite party from the H.M. hospital to Kaliappa hospital without ascertaining the availability of ventilation facility and without any proper care, further when the ventilation facility is not available the patient would have shifted without admitting there to some other hospital i.e trinity hospital, were she was subsequently admitted. So that the patient being kept in ICU in the Kalliappa hospital for some time on 24.02.2002 is of no use without ventilation facility, which the patient was in need. Therefore we are of the considered view that as contended by the opposite parties, the hospital where the major operation / open surgery are conducted must be available with all basic facilities including the ventilation facility for the emergency use of the treatment given to the patient. Whereas the 2nd opposite party hospital where the complainant’s deceased wife was admitted and permitted to undergo for open surgery/major surgery was not provided with adequate basic facility of ventilation which was required for the complaint mentioned patient during post operative treatment as immediate requirement for the treatment of respiratory problem. Further the patient in a serious condition was shifted even without ascertaining the facility available thereon to Kaliappa hospital for which the opposite parties 1 and 2 are jointly and severally responsible which amounts to deficiency of service on their part. However on perusal of hospital records issued by the Trinity Hospital the patient was soon after admission has given ventilation and the patient was died on 6.30.A.M. on 03.03.2002 and the cause of death is mentioned that “MASSIVE PULMONARY EMBOLISM CARDIO GENTIC SHOCK CARDIO RESPIRATORY ARREST"
12. Though the contention of the 1st opposite party contention that the complainant and the patient had suppressed the previous suffering of breathing problem is not acceptable, the patient was previously suffering breathing problem and suitable care and necessary treatment were not pre supposed by the opposite parties due to their carelessness, during the post operative period in particular and the patient was treated even without availability of basic facility of ventilation which was needed by the patient incidentally for the breathing problem as such which resulted in the death of the patient due to respiratory arrest. Considering the above facts and circumstances for the death of the patient deceased Saroja Viswanathan the above mentioned deficiency of service appear to be committed by the opposite parties 1 and 2 alone not a total cause. Therefore we are of the considered view that the claim of the complainant for refund of the medical expenses incurred and paid to the opposite parties cannot be proper and complainant is not entitled to as necessary treatment was given to the patient. However for the above mentioned deficiency of service committed by the opposite parties 1 and 2 in not taking adequate care and providing proper ventilation facility which was needed by the patient during the post operative treatment, the opposite parties are liable to pay compensation to the complainant. The complainant has claimed Rs.10,00,000/- which is exorbitant, when considering the facts and circumstances of the case. Therefore we are of the considered view that the opposite parties 1 and 2 jointly and severally liable to pay a sum of Rs.5,00,000/ as compensation to the complainant, with interest at the rate of 9% p.a. from the date of the complaint i.e. 20.3.2003 to till the date of payment and also to pay a sum of Rs.5000/- as litigation charges, to the complainant within 6 weeks from the date of this order. Accordingly the points 1 and 2 are answered.
In the result the complaint is partly allowed. The opposite parties 1 and 2 are jointly and severally directed to pay a sum of Rs.5,00,000/- (Rupees Five lakhs only) as compensation with interest at the rate of 9% p.a. from the date of this complaint i.e. 20.3.2003 to till the date of payment and also to pay a sum of Rs.5000/- (Rupees Five thousand only) as litigation charges, to the complainant within 6 weeks from the date of this order.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 2nd day of February 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- 18.1.2002 - Public Health Centre Pathology reports.
Ex.A2- 3.2.2002 - Public Health Centre Medical report.
Ex.A3- 20.2.2002 - Siva Cardio care linked median report.
Ex.A4- 22.2.2002 - HM Hospital discharge summary report.
Ex.A5- 25.2.2002 - RSR Trinity Hospital report.
Ex.A6- - - Total Expenditure report.
Ex.A7- 9.12.2002 - CAI issued a notice
Ex.A8- 12.12.2002 - Ack.
Ex.A9- 27.12.2002 - 1st opposite party reply letter.
Opposite parties’ Exhibits:-
Ex.B1- 22.2.2002 - Anesthesia report.
Ex.B2- 22.2.2002 - HM Hospital order sheet.
MEMBER-I MEMBER-II PRESIDENT.
