This Complaint coming up before us for hearing on 13-09-11 in the presence of Sri P.V. Ramana, advocate for complainant and of                Sri G. Ramalingeswara Rao, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint under section 12 of the Consumer Protection Act seeking compensation of Rs.16,00,000/- for the loss of life of her mother Noorjahan Begum; Rs.1,00,000/- towards loss of love and affection;  Rs.1,00,000/- towards pain and suffering of the said Noorjahan Begum; Rs.1,00,000/- towards mental agony and Rs.10,000/- towards legal expenses.

2.   In brief the complaint averments are hereunder:

        One Shaik Noorjahan Begum i.e., complainant’s mother was a widow aged about 55 years and she was a family pensioner.   The said Shaik Noorjahan Begum had three sons including the complainant.    The said Noorjahan Begum got admitted in M/s Nagarjuna Hospital, Kanuru, Vijayawada on 08-05-09 for ERCP test on the advice of   Dr. M. Kavitha of Guntur.  The tests conducted at M/s Nagarjuna Hospital revealed that the said Noorjahan Begum was having stones in common bile duct.     The doctors of M/s Nagarjuna Hospital removed the stones from common bile duct on 11-05-09 and treated the patient by inserting stent in the tube coming from liver and pancreas.    On the same day the doctors of M/s Nagarjuna Hospital addressed a letter to Dr. M. Kavitha of Sri Janani Institute of Gastroenterology, Guntur. M/s Nagarjuna Hospital issued a warn letter suggesting a precaution to a surgeon before commencing surgery on the said Noorjahan Begum.   The said Noorjahan Begum on 19-05-09 got admitted in the hospital of the opposite party for removal of stones in gall bladder.    The opposite party fixed the date for surgery on 06-05-09.  The complainant orally informed the opposite party about the said warn letter and the slip issued by M/s Nagarjuna Hospital about the fixation of stent.    The Government of Andhra Pradesh paid about Rs.45, 000/- on behalf of the said Noorjahan Begum to the opposite party under Rajiv Arogyasree Scheme.    The opposite party conducted general surgery to the said Noorjahan Begum instead of laparoscopic surgery as promised earlier.   The opposite party removed the sutures and discharged the said Noorjahan Begum on 30-05-09.   The said Noorjahan Begum complained to the opposite party about the uncontrolled blood vomitings and blood motions.   The opposite party admitted the said Noorjahan Begum at about 1.30 a.m. on 02-06-09 when brought with the help of ‘108 ambulance’.   The opposite party started treatment on 02-06-09 at about 8.00 am and administered saline, two blood packets each on 02-06-09, 03-06-09 and 04-06-09.   Inspite of that blood vomitings and motions were not controlled.   The opposite party expressed his inability to treat the patient and again referred to Sri Janani Institute of Gastroenterology. The said Noorjahan Begum on 05-06-09 again approached M/s Nagarjuna Hospital on the advice of Dr. Kavitha.    Doctors at Nagarjuna Hospital treated the said Noorjahan Begum with medicines on 05-06-09 and 06-06-09 besides transfusion of blood.   The doctors at Nagarjuna Hospital expressed that hepatic artery was cut during the surgery conducted by the opposite party which resulted bleeding inside, advised open surgery which requires about Rs.10,00,000/- to Rs.15,00,000/- approximately and more over survival chances are very low though surgery done. The complainant admitted his mother Noorjahan Begum on 07-06-09 in the Government hospital, Guntur.    The said Noorjahan Begum breathed her lost at about 06.15 p.m., on 07-06-09 in GGH, Guntur.   The said Noorjahan Begum died due to wrong and sub standard surgery done by the opposite party negligently without proper skill and care.   The complaint therefore be allowed.

1. The contention of the opposite party in brief is thus:

The complainant’s mother was admitted in the hospital of the opposite party on 19-05-09 on reference made by Dr. Kavitha, radiologist.     The complainant’s mother earlier underwent treatment in M/s Nagarjuna hospitals, Kanuru, Vijayawada for removal of stones in common bile duct and a stent was placed in common bile duct. A team of doctors consisting of the opposite party                                     Dr. K. Ramalingeswara Rao, Dr. K.Seetharamaiah, M.B.B.S., D.A., conducted laparoscopic cholecystectomy on 22-05-09.  At the time of surgery after clipping and cutting the cystic duct and cystic artery the gall bladder (GB) was separated from the liver bed.   When noticed an accessory vessel started bleeding and could not be controlled due to blocked vision, laparotomy was done immediately and bleeding vessel was identified and ligated.      One bottle of blood was given on the table.   Wound closed in layers with a drain.   The drain was kept for three days during which ultrasound and liver functioning tests were conducted.   The discharge from drains found to be minimal.   The wound was healed and the patient was discharged on 30-05-09. The opposite party learnt that  at her house complainant’s mother took analgesics indiscriminately on her own as developed pain and fever.   The opposite party came to know that the stent in CBD passed spontaneously per rectum at house.   Once again complainant’s mother was admitted on 02-06-09 with complaints of blood vomitings and blood motions.   At this juncture liver functioning tests showed normal and widal was positive.   Gastroscopy revealed millory – Weis tear with oozing.   The opposite party treated complainant’s mother with PPI injections, blood transfusions etc.   The opposite party learnt that complainant’s mother took treatment from local RMP.   Cause of bleeding might be due to use of analgesics or ulceration of gut due typhoid or from the sphincterotomy site due to injury of stent as passed out.  The complainant’s mother was stable on 03-06-09 and 04-06-09.   In the early hours of 05-06-09 complainant’s mother started profuse bleeding and large blood vomits and blood motions.    Complainant’s mother was advised to approach higher centre. Thereafter the complainant’s mother was treated at M/s Nagarjuna hospital, Kanuru, Vijayawada and at GGH, Guntur.    The opposite party learnt that complainant’s mother expired on 06-06-09.   No biopsy was done at Nagarjuna hospital to assess damage to liver.   Cause of site of bleeding could not be ascertained as nuclear scan was not done.   Very likely use of NS AIDS had given rise to severe GI bleeding which may be life threatening.   Autopsy was not performed even at GGH, Guntur to ascertain the cause of bleeding.   Acute obliteration of a branch of hepatic artery will give rise to severe pain in right upper abdomen and alter liver functioning tests.   The complainant’s mother never complained of any pain in right upper abdomen.   Liver functioning tests done on 03-06-09 revealed normal condition.   Death hence cannot be attributed to acute hepatic artery occlusion.   The opposite party exhibited due care and caution during operation and post operation.   The opposite party never departed from the established procedure envisaged by the medical authorities on the subject.   The opinion expressed by Nagarjuna hospitals that bleeding in hepatic artery was incorrect and not based on sound observations.   There was no medical negligence on the part of the opposite party.   The amount claimed by the complainant was exaggerated.   Rest of the allegations contra mentioned in the complaint is all false and are invented to suit his case.   The complaint therefore be dismissed.

4.   Exs.A-1 to A-27 on behalf of complainant and Exs.B-1 on behalf of opposite party were marked.   

5.   Now the points that arose for consideration in this complaint are:            

        1.   Whether the opposite party treated the complainant’s                        mother negligently during surgery and after surgery?

        2.   Whether the complainant is entitled to compensation and                                   if so, to what amount?

        3.    To what relief?

1. Undisputed facts in this case are these:
   1. The complainant’s mother underwent operation for removal of stones in common bile duct at M/s Nagarjuna Hospitals, Kanuru, Vijayawada on the advice of Dr. M. Kavitha (Ex.A-1 to A-6).  
   2. The complainant’s mother underwent cholecystectomy in the nursing home of the opposite party on 22-05-09 (Ex.A-7).
   3. The complainant’s mother was in the hospital of the opposite party from 19-05-09 to 30-05-09.
   4. The complainant’s mother again approached the opposite party on 02-06-09 with complaints of blood vomitings and blood motions.
   5. The opposite party treated complainant’s mother from              02-06-09 to 04-06-09.   
   6. The complainant’s mother again approached M/s Nagarjuna Hospitals, Vijayawada on 05-06-09 (Ex.A12 to A-20).
   7. The complainant’s mother died on 07-06-09 in GGH, Guntur.

7.      This Forum even prior to numbering the complaint sought an opinion from the Superintendent, Osmania General Hospital, Hyderabad who in turn constituted a committee consisting of Dr. Prathapa Reddy, Professor of General Surgery and Dr. B. Prabhakar, Professor and HOD of Gastroenterology.   This Forum on 28-10-09 received opinion from the Superintendent, Osmania General Hospital, Hyderabad.   A copy of opinion was served on the complainant’s counsel and after hearing him the complaint was taken cognizance. The said opinion was marked as Ex.X-1 at this stage. 

8.    Ex.B-1 is the opinion from the Superintendent, GGH, Guntur on the representation of Sri K. Chennakesavulu, President, Malamahanadu and others and grievance petition presented to the Collector and District Magistrate, Guntur and to the C.M. Peshi.           

9.   POINT No.1:-   In Nizam Institute of Medical Sciences vs. Prashanth S. Dhananka and others [2009 (2) CPJ 61 (SC)] held that in a case involving medical negligence the initial burden is on the complainant, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or a doctor concerned the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy that there was no lack of care or diligence.

10.   In Kusum Sharma and others v. Batra Hospital & Medical Research Centre and others, [(2010) (I) CPJ 29 (SC)] the Hon’ble Supreme Court laid down guidelines for deciding negligence or deficiency of service in medical profession and they are reproduced under:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence.   The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.   Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.    
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.   Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”

11.   The deficiency alleged against the opposite party as mentioned in para 3 (d) of the complaint is that the opposite party conducted general surgery to the patient instead of laparoscopic surgery as promised earlier.   In page 2 of Ex.A-7 at the column operative findings the following was mentioned:

                “Female 54 admitted with pain right hypochondrium patient had already ERCP and extraction of CBD stone and stunt placed.  Before admission patient passed sent spatra nearly and gall stoons.Lap.Cholecystectomy done under general anestheis.   As the gall bladder being separated and accessory cystic artery which was torn and bleeding profusely.   Hence laparotomy done bleeding controlled patient with stood well”. 

                In the same page of Ex.A-7 the column treatment given   it was mentioned “LAPCHOLEOCYSTECTOMY”.

12.  Ex.A-7 discharge summary filed by the complainant revealed that the opposite party conducted laparoscopic Cholecystectomy and did laparotomy to control bleeding.   As against Ex.A-7 there is no other evidence to show that the opposite party conducted general surgery.  Ex.A-7 falsified the said contention of the complainant about the opposite party conducting general surgery.   

13.   The other deficiency of service alleged against the opposite party is that Nagarjuna Hospital doctors expressed their opinion that bleeding occurred as hepatic artery was cut during surgery by the opposite party.  To prove it the complainant examined                                 Dr. K. Jaganmohan Rao of Nagarjuna hospital, Kanuru as PW 2.

14.   PW2 is a specialist in gastroenterology running a nursing home under the name of M/s Nagarjuna hospitals from 1992.   PW2 in chief examination stated that the deceased Noorjahan Begum was suffering from CBD stone and he removed it endoscopically and inserted stent,   the deceased had stones in gall bladder, advised cholecystectomy and informed the same to the referral                                 Dr. M. Kavitha in writing on 11-05-09.   PW2 also stated that the deceased again approached his nursing home on 05-06-09 for abdominal pain and distention of one day duration as referred by Dr. M. Kavitha.  It is also in the evidence of PW1 that he found blood in the intestine but no source was identified, the radiologist opined that the bleeding was probably from hepatic artery, gave initial treatment and stabilized the patient, asked for surgical opinion, the surgeon felt that the deceased needed surgery to confirm CT scan findings and seal the source of bleeding.   PW2 in cross-examination stated that he could not confirm that the bleeding was only from hepatic artery as abdomen was not opened, there was no alteration in liver function test, in case of acute obliteration of branch of hepatic artery, liver functioning tests will alter and gives rise to severe pain in right abdomen.   Ex.A-20 discharge summary revealed that the deceased complained abdominal pain only.   Ex.A-20 did not disclose that the deceased complained abdominal pain either on right side or left side.   PW2 in cross examination stated that there was no alteration in liver function tests.   The said admission of PW2 negatived the possibility of the deceased having pain in abdomen on right side.

15.   Ex.A-22 CD containing liver damage was not shown to PW2 while giving evidence either to corroborate or contradict.  Under those circumstances Ex.A-22 will not help the complainant in any manner.

16.   The opposite party in order to disprove negligence or deficiency of service relied on Ex.B-1 and the evidence of PW2. The relevant portion in Ex.B-1 is extracted below for better appreciation:

“We have gone through the case thoroughly and found no evidence to prove the negligence on the part of Dr. G.V. Krishnarao or his nursing home – Srinivasa Nursing Home in treating the patient concerned”. 

17.  In Ex.X-1 the committee constituted by the superintendent, Osmania General Hospital, Hyderabad opined that prima facie evidence does not suggest medical negligence.    The expert opinion marked as Ex.X-1 and B-1 coupled with the evidence of PW2 in our considered opinion disproved the contention of the complainant that the opposite party treated the deceased negligently while conducting cholecystectomy.     

18.   The decisions relied on by the complainant reported in                

a. Spring Meadows hospital and another vs. Harjol Ahluwalia    through K.S. Ahluwalia & another 1998 (III) CPJ 1 (SC)

b.  Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka &   others 2009 (II) CPJ 61 (SC)

c. Varadha S. Nair vs. Dr. Remani N. Rajan & others                         [2005 (III) CPJ 36 (NC)

d. V.C.Bendale (Dr.) vs. Leela Veeranjaneyulu                                         [2011 (I) CPJ (1) (NC)]

e. Rohini hospital and another vs. P. Shashikala and others                      [2008 (III) CPJ 53 (NC)]

f.  Sheela Hirba Naik Gaunekar vs. Apollo Hospitals Limited, Chennai         and another [Vol.II (part-A) 149 (NC)]

g.  Dr. Ram Sushil Tripathi and another vs. Ghanshayam Khatik

        [Vol.II (part-A)118 (NC)]

h.  A. Athilakshmi(Dr.) vs. A.Ravi & others Vol.III (part-B) 16 (NC)

i.   Kumari Rekha & others vs. Prof. B. Sadashiva Murthy & another

        Vol.III (part-B) 212 (NC)

j.  K. Ravindranath (Dr) & another vs. Vitta Veera Surya Prakasam     & others [Vol.III (part-B) 266 (NC)]

k.   Bharti Blood Bank vs. Kharambir & others [2011 (I) CPJ (3)]

l.    Krishna Sharma vs. Raj Hospital and others [2005 (III) CPJ 314]

m.  B. Shyamsunder Raj (Dr) vs. M. Pandarinath & others

[2008 (I) CPJ (53)]   are not applicable to the facts of the case in view of Ex.B-1 and X-1 and the evidence of PW2.   In view of the above discussion, we opine that the complainant failed to prove that the opposite party committed deficiency of service or treated negligently while doing cholecystectomy and answer this point against the complainant.    

19.   POINT No.2:-   In view of findings on point No.1 we opine that the complainant is not entitled to any compensation.

20.   POINT No.3:-   In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 28th day of September, 2011.

MEMBER                                  MEMBER                        PRESIDENT

APPENDIX OF EVIDENCE

ORAL EVIDENCE ADDUCED

PW2 – Dr. K. Jagan Mohan Rao          -   for complainant

DOCUMENTS MARKED

For Complainant:

For opposite party:  

By the Forum:  

 PRESIDENT