Kerala

StateCommission

CC/10/37

K.T.DAVIS - Complainant(s)

Versus

PALANA INSTITUTE OF MEDICAL SCIENCE - Opp.Party(s)

S.S.KALKURA

29 Jan 2020

ORDER

  KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION

      SISUVIHARLANE, VAZHUTHACADU,  THIRUVANANTHAPURAM

 

                                                 CC. 37/2010

 

JUDGMENT DATED:29.01.2020

                         

PRESENT:        

 

HON’BLEJUSTICE K. SURENDRAMOHAN            : PRESIDENT

 

 SHRI. RANJIT. R                                                        : MEMBER

 

 K.T. Davis                                                

S/o. Thomas,               

Res. At Anu Villa,

Manappullikavu,                                                            : COMPLAINANT

Palakkad-13.

 

(By Adv: Sri. P. Ramankutty)

 

             Vs.          

                                     

1.Palana Institute of Medical Sciences, Kannadi P.O.,

   Palakkad-678 701, Rep. by its Director.

 

(By Adv: Sri. Viju K. Raphel)

                                                                                      : OPPOSITE PARTIES

2. Dr. A.R. Kannan, (M.S), Surgeon,

    Palana Institute of Medical  Sciences,

    Kannadi P.O., Palakkad-678 701.

 

(By Adv: Sri. V.K. Venugopalan)

 

 

                                                   JUDGMENT

 

HON’BLEJUSTICE K. SURENDRAMOHAN  : PRESIDENT

 

          The complainant is before us claiming compensation for alleged negligence in his treatment by the opposite parties.

2. The 1^st opposite party is a hospital while the 2^nd opposite party is a general surgeon. The complainant was an engineer in the Public Works Department.  He had retired from service on superannuation on               31-03-2004.   According to him he first noticed on 08-05-2010 that both his hands  were shivering, that he was suffering from loss of weight and was having a feeling  that his eyes were protruding out of their sockets.  He therefore consulted Dr. Bobby Manuel, a General practitioner for treatment.  After conducting a physical examination and perusing the results of blood tests conducted, he expressed the opinion that the complainant was suffering from problems caused by the malfunctioning of his Thyroid gland. Though the complainant had undergone treatment under him for about one and half years, there was no significant improvement in his condition. Therefore, he discontinued treatment and approached the 1^st opposite party hospital for further treatment.  Initially, he was examined by Dr. Suresh, an ENT Surgeon, who  referred the complainant to the 2^nd opposite party, a general surgeon.

          3. The 2^nd opposite party after examining the complainant,  advised him  to undergo a Thyroidectomy, surgical removal of his Thyroid gland.  According to the complainant, believing that the 2nd opposite party was an expert in the field of Thyroid surgery and believing that he had  vast experience in the field, he agreed to have the surgery done.  However, according to the complainant he later  came to understand that the 2^nd opposite party was only an Endoscopist and Laproscopist surgeon, who does not possess the required skill or competence to carry out a Thyroidectomy.  The 2^nd opposite  party directed the complainant to get himself admitted for surgery to the 1^st opposite party hospital on 20-06-2010.  The surgery was conducted by the 2^nd opposite party on 21-06-2010 and a total Thyroidectomy was conducted under  general anasthesia.

          4. According to the complainant he suffered from breathlessness immediately  after the surgery and could not take even liquid food on account of obstruction in swallowing.  Though he had complained to the opposite parties of his discomfort, they only dismissed the complaints stating that they were only the after effects of the surgery.  He was found fit for discharge and was discharged on         25-06-2010 on the assurance that the symptoms would ease out within a few days.   He was also directed to come for a review after 3 days. However, the symptoms aggravated and the complainant had to be admitted on the very next day on account of breathlessness, difficulty in swallowing and inability to consume any food or liquid.  Thus he was again admitted on   26-06-2010.  He was then told that he was suffering from post operative                    hypocalcaemia, a deficiency of calcium in the blood caused by hypoparathyrodism and treatment  was given to the complainant, as directed by the 2^nd opposite party.  The complainant was later discharged on 29-06-2010 by the 2^nd opposite party with direction to come for review after 5 days.

          5. Though the complainant was discharged on 29-06-2010 his symptoms only aggravated, with every passing day.  Therefore, he again  went to the 1^st opposite party on 03-07-2010. He was admitted to  the hospital by the 2^nd opposite party  for the reason that, he had realized the surgery conducted to have been unsuccessful.  According to him, though the 2^nd opposite party had recorded both his vocal chords to be normal after surgery, the  ENT surgeon had found that he was suffering from right vocal chord palsy.  He had suggested consultation with an ENT surgeon of a higher centre.  Though the complainant did not have any relief from the post operative discomforts suffered by him, he was discharged on              09-07-2010.  Thereafter, he went to the Jubilee Mission Medical College  Hospital, Thrissur. He was examined by Dr. Ramesh, an  ENT surgeon, who found that the complainant  was suffering from paralysis of the right vocal chord and partial weakness of the left vocal chord.  In order to ease the post operative complaints, a tracheostomy was conducted under  General Anesthesia and an  8.5 portex tube was inserted. The tube was inserted to ease the breathlessness. After surgery, the complainant was discharged from the hospital on 15-07-2010.  On 26-07-2010 the complainant had to be readmitted since he developed bleeding from the tracheostomy site.    After the bleeding   was stopped he was discharged on 03-08-2010. However, since the complainant could not take any solid or liquid food, he was admitted on 07-08-2010. He was then referred to Dr.

K.B. Mohan of the  General Medicine Department.  After treatment, he was discharged on 18-08-2010.  On        15-11-2010 he was again admitted for decanalization after tracheostomy.  The complainant was diagnosed as suffering from vocal chord palsy and hypocalcaemia.  According to the complainant all the complications referred to above were the result of an omission to exercise reasonable care and  to conduct the surgery with a reasonable degree of skill and knowledge. The opposite parties were under an implied duty to exercise such reasonable care, knowledge and skill.  Their omission to do so is an actionable wrong.  In the case of the complainant, such lack of care and negligence has reduced his chances of  recovery,  has prolonged his illness and aggravated his sufferings. Therefore, he claims an amount of      Rs. 20,50,000/- as compensation from the opposite parties.

          6. The opposite parties have filed separate versions, contesting the complaint.            They have put forward identical contentions that are summarized as under.

          The contention of the complainant that the 2^nd opposite party was not a properly qualified person has been denied. According to them, he was a general surgeon           having  a very good reputation and sufficient experience in the diagnosis, surgery and treatment of conditions similar to the one faced by the complainant. The complainant had been referred to the  2^nd opposite party by the ENT surgeon of the hospital, Dr. Suresh.  According to them, the complainant had come to the hospital with a  huge thyroid swelling of long duration. He had developed Thyrotoxicosis on a long standing goiter. It was not a sudden on-set of symptoms one fine day, as stated in the complaint.  Clinical and laboratory diagnosis proved  the same to be secondary thyrotoxicosis.  The ENT surgeon had evaluated the complainant and had found him to have thyroid swelling with nodules, exophthalmoses, Tremor,  which were all features of Thyrotoxicosis.  The 2^nd opposite party examined the complainant and advised surgical treatment.  A total thyroidectomy  was the standard treatment for goiter with

thyrotoxicosis.  All blood investigations, x-ray chest,  ECG, Anaesthesiology and cardiology evaluation were done.  The complainant was prescribed anti thyroid medication for making him euthyroid  before surgery.  The patient was periodically reviewed  with medication on 14-10-2010, 24-05-2010, 01-06-2010 and 17-02-2010 and 19-06-2010.  Since the patient had become euthyroid by them, he was advised to get admitted on 20-06-2010 and the surgery was conducted on 21-06-2010.  Before surgery, all the aspects thereof were explained to the complainant and his relatives and informed consent was obtained. 

          7. The post operative period was uneventful.   He was shifted to the ward on the same day itself since he was comfortable and there was no untoward incident.  He was reviewed daily by the 2^nd opposite party and was discharged on 25-06-2010.  On 26-06-2010 the complainant was brought to the casualty of the 1^st opposite party hospital with complaints of tightening of muscles and breathing difficulty.  He was found to have hypocalcaemic tetani, which is caused due to decreased calcium in the blood  which commonly occurs following total thyroidectomy. He was treated with calcium  supplementation whereupon he improved and  the symptoms subsided.  On     28-06-2010 sutures were removed.  The complainant was comfortable, having food  and the wound was well healed.  He was discharged  on   29-06-2010, with advise for  review  after 5 days.  The complainant came for   review on the   5^th day that is on 03-07-2010.   He complained of breathing difficulty while lying down.  Since the symptom was persistent,   ENT and pulmanary consultations were done.  The ENT surgeon did an indirect laryngoscopy and diagnosed right vocal chord palsy.  According to the opposite parties, unilateral and even bilateral vocal chord palsy is a common complication following thyroidectomy, especially total thyroidectomy for large thyroid. It is their case that in most cases the patient recovers and the symptoms  disappear after some time. But the relatives wanted to go to another hospital for treatment, and therefore he

 

was discharged.   According to the 2^nd opposite party, he is a general and laparoscopic surgeon having experience of  more than 20 years and having skill in doing thyroidectomy surgery.  The opposite parties contend that there was no negligence on their part, that the complainant was given all treatment as per expert and standard protocols in treating such a patient. There was no lapse  in the standard of care that was exercised by the opposite parties.  Therefore, the complainant is not entitled to receive any compensation from them.  According to them, the complaint is misconceived and is liable to be dismissed.

 

                    9. According to the complainant,  the second opposite party who was a general surgeon was not competent to perform the surgery of thyroidectomy. The said surgery, according to the counsel  had to be conducted  by an ENT surgeon.  Since it is not in dispute that the surgery of  the complainant was conducted by the 2^nd opposite party, this is a case to which the principle of res ipsa loquitur applies.   Therefore, without any further evidence of negligence, the complainant is liable to be compensated.  According to the learned counsel for the complainant, in the facts and circumstances of the present case, the burden is fully upon the opposite parties to rebut the presumption of negligence that strongly arises.  It is further contended that, the opposite parties had concealed from the complainant the fact that his Thyroid  was large  and that, his vocal chord  was damaged after the surgery.  According to the learned counsel for the complainant, the patient  had not been referred to an ENT specialist before the surgery.   There was also no proper clinical investigation before the surgery was conducted.  The size and condition of the gland  was not evaluated through  ultra sound scan.  The counsel also relies heavily on an answer given by the  2^nd opposite party as DW2, to the effect that, he had not examined the patient after surgery.  In view of the above, it is contended that this is a fit case in which the amount of compensation as claimed by the complainant is granted.   The counsel has also placed reliance on a number of decisions of the Apex Court in support of his contention that the principle of res ipsa loquitur  is attracted in this case.  That there has been serious latches on the part of the opposite parties in treating the complainant has been clearly established by the materials on record and therefore he prays that the complaint may be  allowed.

          10. The counsel appearing for the opposite parties on the other hand draws our attention to paragraphs 1 to 3 of the complaint itself to point out that, even according to the complainant he had been under treatment  for his ailment from one Dr. Baby   Manuel for more than one and a half years .  However, there was no improvement in his condition.   It was in such a situation that he had approached the 1^st opposite party hospital.  He was examined initially by Dr. Suresh, an ENT Surgeon.  It was the said doctor who referred the complainant to the 2^nd opposite party.  Therefore the contention that, no ENT specialist had examined the complainant is wrong.   The 2^nd opposite party is a competent surgeon with sufficient experience in conducting similar surgeries. He is also a person who enjoys a very good reputation.

          11. Our attention is drawn to the medical records to point out that all necessary tests had been conducted on the complainant before his surgery. The tests were being done from 01-06-2010 onwards.   The surgery was done only after all the tests were done and the results were found to be satisfactory.  There has been no negligence in the treatment of the complainant as alleged.  He is completely cured of his illness and has been examined as PW1, speaking without any difficulty.  According to the learned counsel for the opposite parties  there are no materials or evidence available in this case to conclude that, the complications that followed the surgery were a direct result of the surgery or that there was any negligence in the conduct of the surgery as alleged.  No expert has been examined in this case.  Even the doctor who treated the complainant at Jubilee Mission Medical College Hospital,  Trichur, has not been examined.  All the complications that followed the surgery were known complications of a Thyroidectomy.  It is normal for such complications to subside over a period of time and for the patient to recover.  In the present case also the complainant has recovered fully and is free of all symptoms now.   When he was  examined as PW1 he has admitted that the shivering of his hands, protruding  of his eyes and other symptoms had disappeared.  Therefore the counsel seeks dismissal of the complaint.

 

8. Both sides adduced evidence on the above pleadings. The complainant examined himself as PW1 and marked Exbts. A1 to A3 series documents on his side.  The opposite parties have examined themselves  as DW1 and DW2.  They have not adduced any documentary evidence. The documents produced are the medical bills and  treatment records of the complainant.  After close of evidence the matter was heard.

          12. The questions that arise for consideration are the following

1. Whether there has been any medical negligence on the part of the opposite parties in treating the complainant?
2. Whether the complainant is  entitled to compensation as claimed?

13.Question Nos. i and ii. It is not in dispute that the complainant had been under the treatment   of Dr. Boby Manuel, a general practitioner, for his ailments. According to the complainant, he was suffering from shivering of his hands, loss of weight  and a feeling that his eyes were protruding out of their sockets.  For those symptoms, he was under  treatment for a period of one and half years prior to the date on which he consulted the 2^nd opposite party.  Initially, the complainant had come to the 1^st opposite party and was examined by one Dr. Suresh, who was an ENT surgeon.  It was on his reference that he was seen by the 2^nd opposite party. According to the 2^nd opposite party,  he found on examination of the complainant  that he had developed Thyrotoxicosis  on a long standing goiter. His condition was diagnosed as Secondary Thyrotoxicosis.  The ENT surgeon had earlier evaluated the condition of the complainant and he was found to have Thyroid Swelling with nodules,  Exophthalmoses, tremor, which were all features of Thyrotoxicosis.  Therefore, the 2^nd opposite party advised surgical treatment.  Accordingly a total thyroidectomy, which was the standard treatment for goiter with thyrotoxicosis was planned.   All necessary blood investigations and other tests were conducted.  He was also prescribed medicines for making him euthyroid before surgery. He was periodically reviewed on 13-05-2010, 24-05-2010 and 06-02-2010, 17-06-2010 and     19-06-2019.  It was found that the complainant had become euthyroid by then.  Therefore, he was advised to get admitted on 20-06-2010 and the  surgery was conducted on 21-06-2016.  The surgery was conducted after explaining to him and his relatives , all the pros and cons  thereof.   Thereafter, an informed consent was given,   It was thereafter that a total Thyroidectomy was done on the complainant.   The post operative period was uneventful.  Since the patient was comfortable, he was shifted to the ward on the same day itself. Thereafter, the patient was reviewed daily and was discharged on 25-06-2010.

 14. The sequence of events up to the discharge of the complainant on 25-06-2010 is not under serious dispute by the complainant. The complainant has  a  case that, the post operative complications suffered by him were because of the fact that the surgery conducted on him was not successful. However, the case of the second opposite party is that they were all consequences that, usually follow a total Thyroidectomy.   According to him, all such symptoms disappear within a period of time.

  15. According to the complainant’s counsel, after surgery the complainant had difficulty in swallowing even liquid food and also had breathing difficulty.  Though he was discharged with the assurance that the symptoms would subside he had to be admitted again on the next day because of his breathing difficulty.  He was discharged on 25-06-2010 with instruction to come for a review after 5 days.   However, on 03-07-2010 he was again admitted.  According to the opposite parties he was found to have Hypocalcaemic  tetani  which is due to the decrease of calcium in his blood. The case of the opposite parties is that it occurs usually after a Thyroidectomy surgery. On 03-07-2010, since the symptoms were persisting he was seen by an ENT surgeon and Pulmonologist.  An Indirect Laryngoscopy was conducted and it was found that the complainant had bilateral  vocal chord palsy.  According to the 2^nd opposite party the same was also a common complication following a total thyroidectomy of which the patients recover over a period of time. In the case of the complainant it was a large thyroid that was removed.  At this stage, however, the complainant discontinued his treatment with the opposite parties and went to the Jubilee Mission Medical College Hospital.  According to the complainant it was then diagnosed that he was suffering from paralysis of his right vocal chord and partial weakness of his left vocal chord.   In  order to ease his breathing difficulty a tracheostomy was conducted on him under general anesthesia and an 8.5 portex tube was inserted.  Later on he suffered bleeding from the tracheostomy site.  After his treatment there he was discharged again.  The case of the complainant is that all the complications that he had suffered from were the result of failure of the surgery conducted on him.  According to him he was diagnosed  with vocal chord palsy  and  hypocalcaemia.  The defence of the opposite party is that both these conditions were  the usual  consequences of any thyroidectomy surgery and that they would disappear over a period of time. In this case all the symptoms have disappeared.  The complainant has given evidence in this case as PW1. He had no difficulty in speaking when he was examined and has  been subjected to cross-examination.  He has admitted in the box that  the symptoms from  which he had been suffering, like shivering of hands, bulging of eyes, etc.  had subsided.

 16. A perusal of the medical records produced in this case show that, before the surgery was performed on the complainant necessary investigation of the blood and other tests had been conducted as contended by the opposite parties. He had been put on medication to make him euthyroid  and   it was only thereafter that the surgery was conducted.  Admittedly, he had been under the treatment of another doctor for a period of  one and half years prior to his coming to  the 1^st opposite party hospital.  All the symptoms from which he had been suffering have subsided, as evident from his answers in cross-examination.  Therefore, the fact remains that the treatment of the opposite parties has benefited the complainant.

17.  In this case,  apart from the evidence of the complainant as PW1, there is  no other evidence to support his contention that the opposite parties were negligent in treating him.  As already noticed above, since the complainant was suffering from Thyrotoxicosis of an advanced nature, according to the opposite parties,  total thyroidectomy was   the  standard procedure for  treating the same.  No evidence to show that the said statement is not correct has been adduced in this case.  After his discharge on 09-07-2010 though the complainant was treated at the Jubilee Mission Medical  College Hospital, they have not given any other treatment to the complainant, except the conduct of a tracheostomy to ease his breathlessness.  The said procedure only involves insertion of a tube  through the throat of the patient. As evident from the records, the tracheostomy, caused bleeding and the said complication was later contained  by administering  antibiotics, though the  bleeding point was not identified.  In short, the medical records do not show that the complainant had been subjected to any treatment different from what was prescribed by the opposite parties, at the Jubilee Mission Medical College Hospital. As rightly pointed out  by the opposite parties, the condition of the complainant has improved substantially, and he  has given evidence on his own in this case.  No expert  witness to support the contention  that the treatment given by the opposite parties to the complainant was wrong or that the same was deficient in any manner has been adduced.  Even the doctor  who treated the complainant at the Jubilee Mission  Medical College Hospital, has  not been examined. Therefore, there is nothing on record to show that there was any deficiency in service on the part of the opposite parties in treating the complainant, as alleged.  In view of the above,  we are not satisfied that the complainant is entitled to any of the reliefs claimed by him.

 18. Though it is contended by the counsel for the complainant that the 2^nd opposite party was only an endoscopist  and laproscopist  without the skill and competence to carry out a Thyrodectomy, there is no evidence to support the said allegation.  On the contra, the second opposite party is admittedly the holder of a post graduate degree in general surgery.  The records  show that he is, in addition, an endoscopist  and laparoscopist  surgeon.  The further contention of the complainant  that an ENT surgeon ought  to have been associated with his surgery  does not impress for the reason that, even according to the complainant, it was the ENT surgeon of the 1^st opposite party hospital,  who had referred the complainant to the 2^nd opposite party after examining him.  Such reference was made obviously for the reason that, it was the general surgeon who was competent to conduct the Thyroidectomy.    Anyhow, there is nothing on record to support the contention of the complainant that the Thyroidectomy  had to be conducted by an ENT surgeon.  Therefore the principle of Res Ipsa Loquitur has no application to the facts of this  case. Though it is contended by the complainant’s counsel that no tests  or investigations preliminary to the surgery had been conducted, the hospital records show otherwise. The hospital records show that the Thyroid was large, weighing  100 gms .  The removal of such a large thyroid would give rise initially to various complications, it is contended. Since the symptoms have  subsided with the passage of time and  the patient has recovered, the case of the opposite parties stand substantiated. Though it is true that the complainant had to suffer various complications during the post operative period, he has recovered and has become sufficiently well enough to give evidence on his own.  His recovery proves, that, the surgery performed on the complainant by the 2^nd opposite party was successful and that the complainant had only benefitted from it.    Admittedly he has become free of  the symptoms from which he was suffering when he initially approached the 2^nd opposite party.

 19. The counsel for the  complainant sought to make much of an answer given by  the  2^nd opposite party when he was examined as DW1.  In cross-examination, the counsel had asked him the following question.

“Will it be correct to say that the difficulties experienced by the patient now is due to the defective surgery conducted by you?

Ans: No. after surgery I have not seen the patient”

 20. According to the counsel, the 2nd opposite party has admitted that he had not seen the patient after surgery, which clearly proves negligence on his part.  However, the above contention is even against the statements made in the complaint  and proof affidavit of the complainant . According to the complainant, the symptoms from which he was suffering after the surgery like breathlessness and difficulty in swallowing were treated by the 2^nd opposite party.   Thereafter he was discharged on 25-06-2010 by the 2^nd opposite party.   He again went to the hospital on 03-07-2010 and  was admitted to the hospital by the 2^nd opposite party.  It is further stated that the 2^nd opposite party had recorded that both the vocal chords of the complainant were normal after surgery.  All the above averments made by the complainant shows that the 2^nd opposite party had examined him after the surgery.  Therefore, we are not satisfied that anything turns on the answer of PW1 in cross-examination of which much  is sought to be made out by the complainant’s  counsel.  The answer can only have been one given without properly understanding the question.  Though the complainant has a further contention that he had not been given any information regarding the size of the thyroid before the surgery, there is no evidence to support the said contention also.

21. The result of the above discussion is that, there is no evidence in this case to show that there was any negligence in the treatment of the complainant, as alleged.  The hospital records show that all necessary tests were conducted before the surgery and that proper treatment was provided to the complainant after his surgery.  As contended by the opposite parties, the complainant has recovered after his surgery and all the symptoms of which he had been complaining have subsided.  He has also given evidence in this case, on his own.  There   is no evidence to substantiate his case that the treatment given to him was deficient in any manner.  Therefore we find no justification for the claim of the complainant.

 

 For the foregoing reasons, the complaint fails and is accordingly dismissed. 

           

      

        JUSTICE K. SURENDRAMOHAN : PRESIDENT

 

 

 

RANJIT. R : MEMBER

Val.

 

APPENDIX

 

COMPLAINANT’S WITNESS

 

PW1 : Sri. K.T. Davis

 

COMPLAINANT’S EXHIBITS

 

Ext. A1 Series     : Prescriptions and Medical bills  (Documents 1 to 42)

 

Ext.A2 Series      : Prescriptions and Medical bills  (Documents 1 to 65)

 

Ext.A3 Series      : Medical Bills &  Treatment records of Paalana   

                              Institute of Medical Science & Jubilee Mission Hospital.

 

OPPOSITE PARTIES WITNESS

 

DW1 : Dr. Kannan

 

DW2 : Mr. Julius Arackal

 

OPPOSITE PARTIES EXHIBITS

 

NIL

 

        JUSTICE K. SURENDRAMOHAN : PRESIDENT

 

 

 

RANJIT. R : MEMBER

Val.