PER VINEETA RAI, MEMBER

1.       This First Appeal has been filed by Kasturba Medical College Hospital & Others, Appellants herein and Opposite Parties before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the State Commission) being aggrieved by the order of the State Commission, which had allowed the complaint of Mrs. Ruma Kumar, Respondent herein and Original Complainant before the State Commission, alleging medical negligence.

2.       In her complaint before the State Commission, Respondent-Complainant, who was a teacher at the Bharatiya Vidya Bhavan Vidyalaya, Bangalore, contended that she approached Dr. Benjamin Joseph of Appellant-Hospital following complaints of stiff pain in both knee joints because of which she was finding it difficult to carry out her duties.  After examination, Respondent-Complainant advised to undergo three surgeries, namely (i) right hip total replacement; (ii) total right knee replacement; and (iii) total left knee replacement.  Respondent-Complainant got admitted to Appellant-Hospital on 17.10.1996 for total right hip replacement surgery and was operated on 22.10.1996 after being administered insulin to control blood sugar.  However, soon after the surgery, she developed a bed sore.  She was assured that being a diabetic, there would be delayed healing.  She was discharged after being advised to undergo physiotherapy. Respondent-Complainant underwent the second surgery for total right knee replacement on 23.12.1998 and preliminary tests indicated that she was also suffering from hypertension, of which there was no previous history.  Therefore, tablets were given to control hypertension and blood sugar although Respondent-Complainant specifically brought to the Doctor’s notice that she was insulin dependent.  However, this information was ignored and subsequently the surgery was undertaken although the blood sugar levels were not under control. Respondent-Complainant noted that fluid began to ooze from the scar on her back.  However, the Doctors at Appellant-Hospital failed to take adequate care of the Respondent-Complainant and after the nurses changed the dressing and cleaned the scar, Respondent-Complainant was discharged on 06.01.1999 with advice to take antibiotics and do physiotherapy.  The third surgery for total left knee replacement was undertaken on 03.02.1999 after preliminary investigations were carried out by nurses in a perfunctory and casual manner and again without taking due care to control her blood sugar levels.  Following the surgery Respondent-Complainant developed severe pain in the operated area.  Soon after, reddish coloured fluid was discharged from the operated area, to which the Doctors did not pay any heed.  After 11 days when the bandage was removed, it was noted that the sutures at the top of the wound had broken resulting in discharge of the reddish coloured liquid, the skin had not united and the wound had not healed.  Consequently a culture test was conducted which revealed that staphylococcus infection had set in at the site of the operation due to the unhygienic and unsafe condition at the operation theater.  The wound was re-sutured and Respondent-Complainant was compulsorily discharged on 24.02.1999.  When the Respondent-Complainant went back to Hyderabad, she found after 10 days that the sutures which had been put at Appellant-Hospital had again broken and the wound had not healed and, therefore, remnants of the stitches were removed and the scab that had developed on the operated area was sent for culture test, which indicated that staphylococcus infection persisted despite several antibiotics being prescribed by Appellant-Hospital. Respondent-Complainant also developed severe pain in the left knee apart from the oozing from the operation site and had great difficulty in banding the knee.  On 14.04.1999 Respondent-Complainant was rushed to Apollo Hospital with swollen left knee and high fever and Doctors there informed her that the operation site had been severely infected and partial dislocation of the left knee had occurred.  Respondent-Complainant had, therefore, to undergo an operation to remove the prosthesis after her blood sugar was controlled and the left knee was permanently fixed with Charley Compression Clamps.  After two months of Respondent-Complainant’s discharge from Apollo Hospital, it was noted that the right knee had also got similar infection and, therefore, the second prosthesis was also removed at Apollo Hospital and she was discharged after one month.  Because of the botched surgery in Appellant-Hospital which could only be partially rectified in Apollo Hospital, Respondent-Complainant became disabled and physically immobilized and had to depend on others for her day-to-day activities.  Being aggrieved by the medical negligence on the part of Appellant-Hospital and its Doctors, Respondent filed a complaint of medical negligence against them before the State Commission and listed the following deficiencies in service :

 “a)    failure by Doctors to effectively and completely carry out required investigations prior to surgery;

b)      entrusting the duties of preliminary and other pre-surgery investigations … junior Doctors/nurses on duty;

c)       failure to control the blood sugar levels prior to embarking upon surgery;

d)      failure to consider the specific input of the complainant that she was a diabetic and had been on insulin for control of blood sugar levels;

e)      failure to ensure appropriate standards of sterility in the operation theatre leading to infection necessitating removal of both protsthesis;

f)       failure to exercise due care in preventing the wounds from being infected;

g)      failure to exercise care, competence and skill in performing surgery and suturing leading to breaking of the sutures, requiring resuturing;

h)      failure to exercise care, competence and skill in implanting the two prosthesis and/or implanting them imperfectly leading to infection and consequent removal of both prosthesis;

i)             Failure to ensure that the prosthesis and/or surgical procedures did not leave infection of the nature described in the complaint and/or failure to ensure sterile and antiseptic operation theatre and/or instruments thereby resulting infection;

j)        failure to look after the complainant upon admission, both pre and post operations, including failure by Doctors to monitor the complainant’s progress in the hospital;

k)       failure to explain to the complainant the risk areas, side effects, advantages/disadvantages, possible success rate, failure rate, prognosis of the surgery before imbarking on surgery resulting in the complainant being unable to give “informed consent”;

l)        failure to take adequate precautions and safety measures to prevent surgical wounds from becoming infections/septic; and

m)     failure to devote quality time and attention to the complainant and her medical problems.”       

Respondent-Complainant requested the State Commission that since she had lost her means of livelihood and had become totally dependent, Appellants be directed to pay her Rs.19,04,894/- as per the following break-up :

3.       Appellants on being served filed written reply denying that there was any medical negligence in the treatment of Respondent-Complainant.  It was inter alia stated that the Appellant-Hospital is a well-known institute of excellence and in the instant case all care and precautions were taken in respect of the medical treatment of the Respondent-Complainant at all times.  It was denied that Respondent-Complainant was insulin dependent diabetic at the time of her first surgery.  In fact, she had high blood sugar from the age of 14 years and she was controlling it through drugs and was not insulin dependent.  Surgeries were conducted after taking due care and bringing her blood sugar as also hypertension under control before and during the second surgery. The insulin was started as a precautionary measure prior to the first surgery.  Theater asepsis was meticulously maintained and it was fumigated and UV light sterilized on the evening before her total joint replacement surgery.  All post-operative dressings were done by Resident Doctors using sterilized surgical gloves and mask and the prosthesis used were pre-sterilized.  There was no problem in the fixation or alignment of the prosthesis at the time of surgery or post-operatively and the detailed and meticulously maintained records of the Appellant-Hospital are adequate proof of the same.  The operation was conducted in hygienic condition but despite all precautions staphylococcus infection had set in which is common among patients of rheumatoid arthritis.  However, Respondent-Complainant was cured in respect of this infection before being discharged.  The subsequent complications which arose were after discharge of the Respondent-Complainant from the Appellant-Hospital in a satisfactory condition and the Appellant-Hospital cannot be held responsible for any subsequent problems that may have subsequently arisen because Respondent-Complainant did not heed the medical advice regarding the medication, treatment and follow ups.

4.       The State Commission after hearing the parties and on the basis of evidence produced before it, including the medical literature on the subject partly allowed the complaint by concluding that Appellants had been negligent in the treatment of the Respondent-Complainant in the course of post-operative care.  In this connection, the State Commission in support of its finding specifically observed as follows:

“The patient was taking oral semidaomil from 04.02.1999 and glycomet was added on 07.02.1999, on 06.02.99 even though blood sugar PPBS was 239, Insulin was not prescribed because glycomet was added.  He (Dr. N.R. Rao) has admitted that the patient informed him during surgery the insulin was administered, which cannot be accepted in view of his earlier version.  No insulin was given during surgery as the patient’s blood sugar was 85 mg as mentioned in the Ext. R39.  Lab report at page 224 at 7.40 AM.  He has also admitted that from 10.02.1999 to 14.02.1999 (Ext. R40), there is no record of prescription of blood sugar test to be carried out.  He has admitted that he relied only upon urine analysis to determine the diabetes status of the patient during the days, which is not good indicator of diabetic status as blood sugar.  The very accurate test is blood sugar.  On the date of discharge, the sugar fasting 110 mg and PPBS 142 mg and according to him (Dr. N.R. Rao), the diabetes was under control.  At the time of discharge, on the external examination of the patient, he came to the conclusion that Staphylococcus Aureus infection had been cured.  The above evidence of RW2 points out omissions on his part in treating the patient after the surgery and also during surgery.  For 4 days, blood sugar test was not at all conducted.  Very strangely he (Dr. N.R. Rao) has relied on urine analysis to know the diabetes status which is not good indicator as admitted by him only, without going for accurate test of blood sugar.  From the above material, it is apparent that OPs have neglected in the treatment of the complainant in the course of postoperative care.  Even during the stay in the OP1 Hospital, there was pus formation on the left knee operated area, and there was an infection also on his back, and the opening of the wound, which all points out to the imperfect surgery, and the postoperative treatment.”

The State Commission awarded Rs.2 Lakhs as compensation by observing as follows:

“The evidence of the complainant as pointed out above, fully support the complaint allegations and her suffering as  a result of the complication developed under present condition of immobility, which automatically result in mobility and helplessness in attending to the day-to-day duty, naturally results to the mental agony, and continuous suffering of the pain in operated area.  Under these circumstances, the complainant is entitled for compensation.  As per the complaint, she has classified her claim viz, loss of employment and salary and allowances to the tune of Rs.6,04,894/-, travelling expenses Rs.80,000/- and the change of residential premises Rs.20,000/- and hospital expenses Rs.2,00,000/- and compensation of Rs.10,00,000/-.  None of them are supported by any particulars and material.  It looks to be exorbitant.  From the circumstances and factors of this case, we feel that in the interest of justice, the reasonable compensation of Rs.2,00,000/- is appropriate.”

5.       Aggrieved by the finding of medical negligence against them, Appellants have filed the present First Appeal.

6.       Learned counsel for both parties made oral submissions.

7.       Learned counsel for the Appellants concluded that the State Commission erred in concluding that Appellants were guilty of medical negligence.  From the case history of Respondent-Complainant, which is on record, it is evident that all possible care was taken in respect of her treatment prior, during and in the post-operative period. It was denied that Respondent-Complainant was insulin dependent.  Medicine to control her diabetes was prescribed as required after testing her blood sugar levels.  For example at the time of the first surgery when the blood sugar was 85 mg, it was very much within the normal limit and there was no need to administer insulin.  However, post-operatively when the sugar levels became high at 142 mg, insulin was immediately administered.  It was stated that the question of the prosthesis not being sterilized did not arise because they come in a pre-sterilized packets and the Respondent-Complainant has not been able to produce any evidence to show that this was not so.  While admittedly staphylococcus infection did occur, as per medical literature it commonly occurs in patients with rheumatoid arthritis and it is an admitted risk factor in surgeries on such patients.  On its immediate detection, proper antibiotics on the basis of culture and sensitivity test of the infection, had been started and at the time of discharge it was very much under control.  The State Commission’s finding that Respondent-Complainant’s blood sugar was determined on the basis of urine test and not blood test is also not factually correct as borne out by the history sheet of Respondent-Complainant, where blood tests were regularly conducted to determine the blood sugar levels but since it is not desirable on a daily basis to do so and to avoid unnecessary pricking, urine test is conducted once a clear idea of the blood level is obtained, as happened in the instant case.  It was further pointed out that Apollo Hospital where the Respondent-Complainant underwent subsequent treatment for long periods and where purportedly the prosthesis were removed has not been impleaded as a party since infections requiring removal of prosthesis could well have occurred in that hospital.  Counsel for the Appellants also brought to our attention the expert opinion of the Medical Board comprising of Doctors from the All India Institute of Medical Sciences (AIIMS) set up at the request of this Commission vide its order dated 18.01.2012, which clearly concluded that there was no negligence in the treatment of the Respondent-Complainant at Appellant–Hospital and that the infection which had occurred on the fifth  operated  day  was  detected  and  hospital  managed  it thereafter. 

8.       Counsel for the Respondent-Complainant on the other hand stated that the fact that Respondent-Complainant contracted a serious infection in the Appellant-Hospital while recuperating from the surgery is an admitted fact.  Further, it is also on record that the prosthesis put at the Appellant-Hospital in both knees had to be subsequently removed since they had become infected.  If indeed due care had been taken, then infection in a well-equipped hospital with highly trained professional staff should not have occurred, which clearly points out to deficiency on the part of Appellant-Hospital.  Counsel for the Respondent-Complainant also reiterated that Respondent-Complainant had been suffering from other co-morbidities e.g. diabetes and adequate steps were not taken during the surgery to ensure proper management of these diseases because of which there were persistent problems like oozing, bed sore and the non-healing of the wound.  All India Institute of Medical Sciences had confirmed that the Respondent-Complainant had contracted the infection and merely concluded that there was no “gross” medical negligence.  The State Commission had rightly concluded that there was lack of proper treatment and care particularly in the post-operative period.

9.       We have heard learned Counsel for the parties and have also gone through the evidence on record. Admittedly, the Respondent-Complainant underwent surgeries on three occasions for replacement of both knees as also the hip surgery and as pointed out by the Counsel for the Appellants, we find force in the contention that had proper care and attention not been given to the Respondent-Complainant by Doctors and staff she would not have come back for surgery to the Appellant-Hospital on two subsequent occasions.  Admittedly, soon after the third surgery Respondent-Complainant did contract staphylococcus infection.  However, as per medical literature on the subject, staphylococcus bacteria is one of the five most common causes of infection after injury or surgery and since it is present in the environment, even healthy people carry this bacteria in their system,  including  under  the skin,  without  even  being  aware  of  it*.

(*Source  : Centre for Disease Control and Prevention, Atlanta, USA extracted from Wikipedia USA.gov)

It is further a fact as contended by Appellants that it occurs most commonly in patients with rheumatoid arthritis.  The source of this infection may, therefore, not necessarily be because of lack of proper sterilization in the operation theater or of surgical equipments.  It was under these circumstances that the Board of medical experts from AIIMS also concluded that there was no gross medical negligence on the part of Appellants. 

10.     After having gone through the case history on file, we agree that there was no medical negligence per se in the treatment of the Respondent-Complainant, including in dealing with her other co-morbidities like diabetes and hypertension and all efforts were made to check the blood pressure and blood sugar levels before and after the surgery and as required medication was given.  However, the fact remains that Respondent-Complainant did contract staphylococcus infection while recuperating from the surgery and it persisted despite treatment in Appellant-Hospital.  Appellants’ contention that infection was under control at the time of discharge is not factually correct since it subsequently recurred.  Keeping in view this fact we are of the view that there was some deficiency only in this respect in the post-operative treatment of the Respondent-Complainant, because from the case history and other evidence on record, we are unable to conclude that there was any medical negligence and deficiency in medical treatment of the Respondent-Complainant either in conducting the surgeries or in the management of her other existing co-morbidities like diabetes and hypertension.  Respondent-Complainant on whom there was onus to do so has also not produced any evidence, including any medical expert, to prove her allegations.  Therefore, we are unable to accept the finding of the State Commission regarding medical negligence and deficiency in the treatment and care of the Respondent-Complainant.   

11.     During the course of oral submissions, Appellants’ Counsel stated that as per the order dated 03.07.2006 of this Commission, Appellants had deposited Rs.3,36,125/- with the State Commission, out of which Rs.2,00,000/- had already been released to the Respondent-Complainant. In view of the fact that Respondent-Complainant admittedly suffered because of the infection that she had contracted in Appellant-Hospital and even though there may not be any other deficiency or medical negligence proved in this case, the above amount may be retained by the Respondent-Complainant on ex-gratia basis.

12.     To sum up, the order of the State Commission concluding that there was medical negligence and deficiency in service on the part of Appellant-Hospital in respect of her post-operative care is set aside.  However, the compensation of Rs.2,00,000/- awarded to the Respondent-Complainant is upheld purely as ex-gratia payment for the reasons stated in the preceding paragraph.  The remaining amount of Rs.1,36,125/- alongwith accrued interest may be refunded to the Appellants.   

13.     The present First Appeal stands disposed of on the above terms.