Tamil Nadu

StateCommission

CC/7/2011

DR.D. SAMUEL JAYAKUMAR - Complainant(s)

Versus

THE MADRAS MISSION HOSPITAL, DIRECTOR - Opp.Party(s)

K.P. KIRAN RAO

26 May 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                         Present:     Hon'ble Justice Thiru R. Regupathi               PRESIDENT

                                           Thiru J. Jayaram,                                         JUDICIAL MEMBER

                                           Tmt.  P. Bakiyavathi                                     MEMBER

C.C. No. 07 / 2011

Dated this the 26^th day of  MAY, 2015

Dr. D. Samuel,                                                       ]

S/o Late S.G. Duraisamy,                                       ]

24, Alagesan Street,                                                ]                               Complainant

West Tambaram,                                                   ]

Chennai – 600 045                                                 ]

                                                    Vs

1. The Madras Mission Hospital,                             ]

    Represented by Mr. V. John Paulose,                 ]

    Director-Administration,                                     ]

    4-A, Dr. J.J. Nagar,                                           ]

    Mogapair, Chennai – 600 037                    ]                                             Opposite Parties

2. Dr. V.M. Kurian,                                                 ]

    Cardio Thoracic Surgeon,                                   ]

    Madras Medical Mission Hospital (M.M.M),         ]

    4-A, Dr. J.J. Nagar,                                           ]

    Mogapair, Chennai – 600 037                    ]

             This complaint coming up before us for final hearing on 10-02-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

Counsel for Complainant:                             Mr. K.P. Kiran Rao

Counsel for Opposite Parties:              Mr. V. Achuthan

J. JAYARAM, JUDICIAL MEMBER

             The case of the complainant as per the amended complaint is as follows:

              The complainant is retired Medical Registrar and Senior Physician in Government Chengalpet Medical College and Hospital. On 29-09-2009, he went to the 1^st opposite party hospital for cardiac consultation, and he was examined by Dr. Ajit Mullasari, M.D., D.M., Director of Cardiology and on his advice, Angiogram was done on 5-10-2009, and the Doctor planned coronary artery bye pass surgery for the complainant. On 8-10-2009, the surgery was performed by Dr. V.M. Kurian, M.S., MCh. (Cardio) who is the 2^nd opposite party in the complaint. The surgery was successfully done without any problem. However, in the course of the surgery, the complainant’s left phrenic nerve got injured resulting in left phrenic nerve paralysis causing him severe breathing difficulty; but the opposite parties did not take care   of it and he was discharged from the hospital on 17-10-2009.

2.       During the post operative period, he was conscious, but restless and he was breathless even at rest and there was no improvement in the breathing difficulty and other manifestations. Therefore, he went to another reputed hospital viz. Frontier Life Line Hospital, Chennai to evaluate the cause of breathing problem and there it was promptly diagnosed by the Cardiologist and Pulmonologist as left phrenic nerve injury and paralysis. On 9-12-2009 the Pulmonologist did Fluoroscopy examination and it was confirmed as left phrenic nerve paralysis which occurred during the cardiac surgery done on 8-10-2009. The fact of left phrenic nerve injury was again confirmed by yet another reputed hospital viz. Sree Ramachandra Medical College and Research Centre, Porur, Chennai. The severe breathing problem is due to poor oxygen supply to the body and the brain since only one lung is functioning instead of two and his body and brain developed tiredness, fatigue and extreme muscle weakness. He has to breath with only one lung caused due to the left phrenic nerve injury and the consequent paralysis of left side of the diaphragm. He also developed giddiness and syncopal attacks.

3.       He did not have Asthma or any other respiratory problem before the cardiac surgery and all the complications are post operative developments. The opposite parties have not mentioned anything about the left phrenic nerve injury and the consequent paralysis in the discharge summary, and it was not even informed to the complainant orally by the opposite parties. All these amount to negligence and deficiency in service on the part of the opposite parties.

4.       He issued legal notice to the opposite parties and the 1^st opposite party sent a reply denying negligence and deficiency in service on the part of the doctors and the assisting staff of the 1^st opposite party. Hence the complaint claiming compensation from the opposite parties, as follows:    

Pain & Suffering                                                    Rs. 5,00,000/-

Permanent disability                                               Rs.25,00,000/-

Mental agony                                                          Rs. 5,00,000/-

Loss of earning                                                       Rs.20,00,000/-

Treatment, Nursing & Medicine, Oxygen etc        Rs. 5,00,000/-

Total                                                                        Rs.60,00,000/-       (Rs. Sixty Lakhs only)

5.       The opposite parties filed version stating as follows:

          Coronary Angiogram was performed on the complainant by Dr. Ajit Mullasari on 5-10-2009 which showed triple vessel disease. The 2^nd opposite party Dr. V.M. Kurian, is a leading Cardio Thoracic Surgeon with M.S., M.Ch. and DPMR qualification, who conducted the surgery on the complainant with a team of competent and experienced doctors on 8-10-2009. The complainant underwent coronary artery bye pass grafting (CABG) with three grafts on 8-10-2009. In the operation findings, Dr. Kurian (the 2^nd opposite party) has noted that there was a large rent in pericardium on the left upper part and left phrenic nerve running anteriorly and pericardial adhesions anteriorly. The complainant’s respiratory rate, saturation and arterial blood gases remained good. The complainant complained of breathlessness at 9.00 pm on 9-10-2009 and was started on NRBM. The complainant developed ‘stridor’ on 11.10.2009 and the Pulmonologist Dr. Mahesh Kumar examined the patient on 12-10-2009 at about 2:50 pm and diagnosed as post intubation laryngeal oedema and tracheobronchial inflammation aggravated by stress and he was further examined by ENT Surgeon who advised the patient absolute voice rest and to avoid clearing the throat. The Electro-Physiologist also examined the patient. The patient improved well with the treatment. The Pulmonologist reviewed and in his notes on 13-10-2009, he suspected phrenic nerve palsy, and the patient was shifted to room at about 9:30 pm on 14-10-2009, and in the room, the patient demanded oxygen supplementation even though the saturation was maintained normal in room air, oxygen mask at two litres per minute was given. The complainant was not willing for nebulization on 15-10-2009, and condom catheter was put at 10:00 pm on 15-10-2009 as requested by the patient. The patient was discharged on 17-10-2009. 

6.       On 01-02-2010, the opposite party received legal notice dated 23-10-2009 issued by the complainant claiming compensation of Rs.60 Lac as damages for the alleged negligence.  Immediately, after receipt of the above notice, the 1^st opposite party constituted an independent committee of senior doctors of their hospital to review the case of the complainant, and the committee reviewed the entire case records in detail and gave its finding that there is no evidence of any negligence on the part of the doctors and the supporting staff in the treatment given to the complainant.

7.       The 1^st opposite party sent a reply notice dated 24-02-2010, denying liability, enclosing therewith the copy of the committee’s report dated 22-02-2010. The doctors of the 1^st opposite party cannot be attributed with negligence as they had done their best to save the patient, and there is no negligence or deficiency in service on their part.

8.       Both the parties filed proof affidavits. Ex.A1 to A25 were marked on the complainant’s side; and Ex.B1 to B4 were marked on the side of the opposite parties.

9.       The points for consideration are:

(i)      Whether injury was caused in the left phrenic nerve of the complainant during the surgery, resulting in left phrenic nerve palsy / paralysis;

(ii)      Whether there is negligence and deficiency in service on the part of the opposite parties as alleged in the complaint;

(iii)     Whether the complainant is entitled to claim compensation from the opposite parties;

(iv)     To what relief the complainant is entitled.

10.     Point Nos.1&2:-

          The complainant has filed this complaint claiming compensation from the opposite parties on account of the negligence and deficiency in service in the treatment involving bye pass surgery, causing injury in the left phrenic nerve in the course of the surgery resulting in left phrenic nerve palsy / paralysis and suppressing this fact, without disclosing it to the complainant and also in the discharge summary.

11.     It is pertinent to note that there is no medical expert’s evidence or opinion on record to establish the contention of the complainant that the injury was caused in the left phrenic nerve of the complainant while performing the bypass surgery resulting in left phrenic nerve palsy / paralysis. Therefore, we have to decide the point considering the available other evidence and invoking the doctrine of res ipsa loquitur where it could be. In this regard we place reliance on the following decision of the Hon’ble Supreme Court in the case of:         V. Kishan Rao –vs- Nikhil Super Specialty Hospital and another – III (2010) CPJ-I (SC):

“In the opinion of this court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require opinion of an expert or that facts of the case are such that it cannot be resolved by members of the Fora without the assistance of expert opinion. This court makes it clear that in these matters, no mechanical approach can be followed by these fora. Each case has to be judged on its own facts. In a case where negligence is evident, the principle of Res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res-) proves itself – In such a case, it is for respondent to prove that he has taken care and done his duty to repel the charge of negligence”.

12.     In this context, it is pertinent to note that the complainant got admitted in the 1^st opposite party hospital on 4-10-2009, and till the date of surgery i.e. 8-10-2009 he had no problem of breathlessness and as per the Echo report Ex.B1 series (page 7) his Pericardium was found to be normal, and it is repeated (page 12) normal pericardium. 

13.     It is quite apparent that the complainant developed severe breathing problem and developed stridor from the day of operation i.e. on 8-10-2009 after the surgery as seen from the discharge summary Ex.B1 series (page 19), and it is recorded that after the surgery the patient was unable to maintain adequate saturation and complained of hoarseness of voice and breathlessness and as noted in the discharge summary in Ex.B1 series, page 26, in the Nurses Chart on 9-10-2009 at about 9:00 pm, the patient complained of breathing saturation (page 200) and in the Nurses Chart dated 11-10-2009 at 8:30 am and 9:00 am it is noted that the patient complained of breathing difficulty, and wheezing present (Page 206).. 

14.     Further, it is significant to note that the complainant has no past history of Asthma or any respiratory problem or trauma or tumor which indicates that the complainant did not suffer from any sign or symptom of left phrenic nerve injury or palsy prior to conducting surgery on 8-10-2009.

15.     It is pertinent to note that in the discharge summary Ex.A4 series, there is no mention of left phrenic nerve injury or palsy. We have to further note that in his letter dated 17-10-2009 (the date of discharge) Ex.B.1, (page 15) addressed to the Professor of Cardiology, Medical College, Melmaruvattur, who had referred the complainant to the opposite parties, the 2^nd opposite party has not stated anything about the left phrenic nerve injury / palsy and falsely stating that his post operative period was uneventful. 

16.     It is further relevant to note that in the progress report Ex.B1 series (page 87) it is noted by Dr. Mahesh Kumar, M.D., who is the Pulmonologist in the 1^st opposite party hospital that there is left phrenic nerve palsy / evidenced by left hemi diaphragm. We have to further note that in the operation notes dated 8-10-2009 on the date of surgery, it is noted by the 2^nd opposite party as follows: (Ex.B1 series, page 133).

Findings: “Large vent in the pericardium on the left upper part. Left phrenic nerve running anteriorly” and at page 139 in Ex.B1 series, the 2^nd opposite party has written in manuscript, “Findings: Large rent in the pericardium on the left upper part. Left phrenic nerve running much anteriorly”. As already stated above, as per the Echo report Ex.B1 series (pages 7 & 12) his pericardium was found normal and also noted as normal pericardium till the surgery on 8-10-2009. Therefore, it is abundantly clear that the problem in the pericardium developed only while performing the surgery and the left phrenic nerve was injured in the course of the surgery resulting in nerve palsy / paralysis, which is a post surgery complication, which did not exist prior to surgery.  

17.     It is further contended by the opposite parties that immediately after receiving the legal notice sent by the complainant, the 1^st opposite party convened a committee consisting of senior doctors attached to the 1^st opposite party hospital and they reviewed the complaint made by the complainant and after review, the committee found no negligence on the part of the doctors or the supporting staff of the 1^st opposite party hospital. The committee’s report dated 22-02-2010 is filed as Ex.B2. We cannot accept and act upon the report since the review was done by their own doctors attached to the 1^st opposite party hospital, and so we cannot place reliance on it, though it was duly considered.

18.     As already stated, it is quite significant to note that there is no mention of the left phrenic nerve injury or palsy in the discharge summary (Ex.A4) issued by the 1^st opposite party hospital which is a deliberate omission and this fact has been suppressed by the opposite parties without revealing it in the discharge summary and to the complainant. It is to be noted that instead of taking all steps to manage the problem medically, and informing the complainant about it at the earliest point of time, the opposite parties have suppressed this vital fact in the discharge summary and withholding it from the knowledge of the complainant.

19.     The complainant suffered acute breathlessness after the surgery and after discharge from the hospital, he has got himself examined in another reputed hospital viz. Frontier Life Line Hospital, Chennai, where the Cardiologist and the Pulmonologist diagnosed that there was left phrenic nerve injury due to which there was left phrenic nerve palsy (Ex.A10) and fluoroscopy test also confirmed this (Ex.A-11). Moreover, the complainant got himself tested in another reputed hospital viz. Sri Ramachandra Medical College and Research Centre, Porur, Chennai and there also the diagnosis was confirmed (Ex.A12).

20.     Another crucial point is that, Dr. Mahesh Kumar, Pulmonologist has recorded on 13-10-2009 in the Progress Report, Ex.B1 series, (page 87), “Left phrenic nerve palsy / evidenced by left hemi diaphragm”. In the version filed by the opposite parties and also in the committee’s report, Ex.B2, it is stated that the Pulmonologist in his notes on 13-10-2009 had suspected phrenic nerve palsy and the Pulmonologist again reviewed him on 14-10-2009 and reported as ‘better’. The details are not disclosed by the opposite parties as to what is the base of his suspicion and whether treatment was given for the problem of the phrenic nerve injury / palsy, and what does it denote, reported as ‘better’. It is a grey area; and we are kept in the dark about the observations of the Pulmonologist when he examined the patient on 13-10-2009 and again on 14-10-2009. All the details pertaining to the left phrenic nerve palsy, are kept as well guarded secrets, since the nerve palsy is the subject matter of the complaint to substantiate negligence.

21.     On consideration of the entire materials on record, it is well established that there is gross negligence and deficiency in service on the part of the opposite parties in causing injury to the complainant in the left phrenic nerve during the course of the surgery resulting in left phrenic nerve palsy and there is further negligence and deficiency in service on the part of the opposite parties in suppressing the material fact in the discharge summary which is a conspicuous omission and in not taking efforts to manage it medically and deliberately in not informing this matter to the complainant, and therefore we further hold that the complainant is entitled to claim compensation from the opposite parties and the points are answered accordingly.

22.     Point No.3:-

             We have to consider the fact that the complainant is a senior Physician and retired Professor of Medicine, and he has been suffering from severe breathing problem due to poor supply of oxygen, since his left lung is not functioning properly and he has to breathe having only one lung and considering the fact that the opposite parties have not discharged their duty to take effective and serious steps to set right the problem viz. left phrenic nerve injury / palsy, to the extent possible and not disclosing this serious matter to the complainant and deliberately suppressing this matter in the discharge summary and having regard to all the relevant factors we hold that the complainant is entitled to claim reasonable compensation from the opposite parties.  

23.     The complainant has claimed a sum of Rs.60 Lac as total compensation under various heads.

24.     We feel that an award of Rs.12 Lac would be the reasonable compensation for the negligence and deficiency in service on the part of the opposite parties, and a sum of Rs.2 Lac would be the reasonable compensation for mental agony and sufferings and the point is answered accordingly.

25.     In the result, the complaint is partly allowed directing the opposite parties 1&2 to pay jointly and severally a sum of Rs.12 lakhs (Rupees Twelve Lakhs only) as compensation for the negligence and deficiency in service on the part of the opposite parties and to pay a sum of Rs.2 Lakhs (Rupees Two Lakhs only) for mental agony and sufferings and to pay costs of Rs.5,000/- (Rupees Five Thousand only).

                   

       Time for compliance two months from the date of receipt of copy of the order. In case of default to comply with the order, the amounts shall carry interest at the rate of 9 % p.a. from the date of default till compliance.

 

P. BAKIYAVATHI                  J. JAYARAM                 R. REGUPATHI

           MEMBER                         JUDICIAL MEMBER            PRESIDENT

List of Complainant Documents

Ex.A1           23-11-2009  Doctors prescription

Ex.A2          01-01-2010  Doctors prescription

Ex.A3          05-10-2009  Coronary angiogram report

Ex.A4          17-10-2009  Discharge summary of M.M.M. Hospital

Ex.A5          04-10-2009  Patient case Record

Ex.A6          08-10-2009  Operation Notes.

Ex.A7          Nil                Dopplr and colour flow study of carotid

                                                And vertebral

Ex.A8          17-10-2009  Discharge certificate by Dr. Kurian, M.M.M

                                      Hospital

Ex.A9          11-10-2009  Lab report.

Ex.A10        Nil               Department of Cardiology and Consultant

                                      Pulmonologist report of Frontier Life Line

                                      Hospital (Dr. K.M. Cherian Heart Foundation)

Ex.A11        09-12-2009  Fluroscopy report of Frontier Life Line

                                      Hospital (Dr. K.M. Cherian Heart Foundation)

Ex.A12        17-12-2009  Fluoroscopy screening report of Sri

                                      Ramachandra Medical Centre

Ex.A13        -                 Extract from the book, “Anatomy for Students”

                                      by Mr. Richard L. Drake, Mr. A. Wayne Vogl.

Ex.A14        -                 Extract from the book, “Color Atlas of

                                      Anatomy” by Lippincott Williams & Wilkins

Ex.A15        -                 Extract from the book, “Grants Atlas of

                                       Anatomy” by Anne M.R. Agur and Arthur F.

                                      Dalley.

Ex.A16        -                 Radiologist Report

Ex.A17        24-05-2009  X-Ray (Material Object)

Ex.A18        04-10-2009  X-Ray (Material Object)

Ex.A19        08-10-2009  X-Ray (Material Object)

Ex.A20        09-10-2009  X-Ray (Material Object)

Ex.A21        10-10-2009  X-Ray (Material Object)

Ex.A22        11-10-2009  X-Ray (Material Object)

Ex.A23        12-10-2009  X-Ray (Material Object)

Ex.A24        13-10-2009  X-Ray (Material Object)

Ex.A25        22-10-2009  X-Ray (Material Object)

List of Opposite Parties Documents

Ex.B1          -                 Series(Out patient Records)

Ex.B2          22-10-2010  Committee’s Report

Ex.B3          23-01-2010  Legal notice issued on behalf of complainant

Ex.B4          16-10-2010  Reply notice issued on behalf of First

                                      Opposite Party

 

P. BAKIYAVATHI                J. JAYARAM        R. REGUPATHI

        MEMBER                        JUDICIAL MEMBER               PRESIDENT