AT HYDERABAD.

F.A.  931/2009  against C.C. 739/2008, Dist. Forum-III, Hyderabad.     

Between:

Kumari  M. S. Nasreen Tabassum

D/o. Mohd. Afzal  Shareef

Age: 21 years,  Student

R/o. Shadnagar,

Mahaboobnagar Dist.                                 ***                         Appellant/

                                                                                                Complainant.

                                                                   And

1)   The Superintendent

KGH the Family Hospital

Opp.  Andhra Colony

Saleemnagar Colony,

Near Super Bazar, Malakpet

Hyderabad.

2)  The Superintendent

Hyderabad Kidney & Laparoscopic  Centre

16-2-674/12, Judges Colony

Malakpet, Hyderabad.

3)  The Superintendent,

Yashoda Hospital, Nalgonda  X Roads

Malakpet, Hyderabad.                                ***                         Respondents/

                                                                                                Ops.

Counsel for the Appellant:                          M/s.  Khalid S. Qurashi

Counsel for the Resp:                                 (R1) – Paper publication

                                                                   M/s. K. Venugopal – R2.

                                                                   R3 - Served

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

                 SMT. M. SHREESHA, MEMBER

FRIDAY, THIS THE SECON DAY OF JULY TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that when she had developed pain on the right side of chest she visited R1 hospital where she was admitted as in-patient.  After conducting tests it was informed that she had to undergo appendicitis operation immediately.    R1 performed the operation on 13.6.2007 at about 12.45 noon.  She had developed post operative complications as such she was shifted to R2 hospital without intimating her condition even to her parents.    When her condition became serious it has advised her parents to take her to R3 hospital for immediate treatment where proper treatment was given and therefore her life was saved.    She came to learn that there was failure of operation and subsequent post operative treatment by R1 & R2.   Her parents had forced to spend Rs. 1 lakh towards treatment.   Despite legal notice claiming compensation they did not respond.    Therefore she claimed recovery of Rs. 1 lakh spent by her parents besides Rs. 1 lakh for pain and suffering and costs against R1 & R2. 

3)                 R1 resisted the case.    It alleged that the  complainant  first  approached doctors  at  Sai Baba  Nursing Home  at Shadnagar on 11.6.2007.  She had  pain in upper abdomen for which they prescribed treatment.   When she developed vomitings,  running high  temperature and her pulse became sluggish and tenderness over the right iliac fossa she was advised for surgery.    On 13.6.2007 at about 1.15 a.m. she came to their hospital with  above complaints.    After conducting tests they diagnosed it as acute appendicitis.   They have explained that it was of high risk surgery and in fact consent was taken for surgery.  By that time she was under septicaemia.    On 13.6.2007 at about 12.30 noon surgery was conducted.   After stabilizing her condition both Cardiologist and Anaesthetist advised her to be shifted to a higher centre for intensive care management and ventilator support.  Accordingly she was shifted to R2 where critical care and ventilator support were  available,  in an ambulance with the assistance of Anaesthetist and staff of the hospital.  The operation was in fact successful.    The complications were not developed. They were already existing at the time of admission as the appendix was gangrenous and perforated with local collection of pus in the abdomen.    Therefore she was referred to R2 hospital.    In fact R2 though was having all requisite facilities itself referred her to R3 hospital.    None of them had alleged that there was wrong diagnosis, negligence or mis-management.    There was no negligence on their part and therefore prayed for dismissal of the complaint with costs. 

4)                 R2 equally resisted the case.    It alleged that when she was referred by R1 hospital with history of pulmonary oedema she was treated with intubations and ventilation for a couple of hours with decongestive therapy.    The opinion of the cardiologist was sought and various tests were conducted and   Echo  test revealed LV dysfunction.   She has been extubated after controlling pulmonary oedema.     As they suspected septicaemia with acute lungs injury and she had recurrent episodes of sudden hypoxia and fall in oxygen saturation she was handled effectively by decongestive RX and introtropic support for falling blood pressure.   Though initially her condition became stabilized, again on 14.6.2007 she had an episode of flash pulmonary oedema with falling oxygen saturation.   One Dr. Mukesh, Consultant Cardiologist of R3 opined ‘heart failure with thickened valves seen on echocardiography, and therefore advised decongestive therapy.  The said treatment was given.    However, on the request of the parents and relatives of the patient she was referred to R3 hospital.    She was given utmost care and the treatment to the best of their ability.    There was no fault in line of treatment given by it.     It   was  not liable for any compensation.  Therefore  it  prayed for dismissal of the complaint with exemplary costs. 

5)                 R3 Yashoda Hospital equally resisted the case.    It alleged that she was admitted in their hospital on 15.6.2007 with a complaint of severe SOB, dyspnoea and shock with history of appendectomy of 48 hours prior to her admission.    The patient was put in AMC on ventilator support, isotropic support and antibiotics ‘meronem vancomycin’.  After giving necessary treatment her condition became improved.   Later she was shifted to ward and finally she was discharged on 23.6.2007 when she became normal.    In fact there was no negligence on its part.    In fact it has provided best treatment and therefore prayed for dismissal of the complaint with costs.

6)                 The complainant in proof of her case filed her own affidavit evidence and got Exs. A1 to A64 marked.    Op2 Dr.  Vishnu Vardhan Reddy filed affidavit evidence and Ex. B1 case record maintained by R1 hospital. 

7)                 The Dist. Forum after considering the evidence placed on record opined that there was no negligence on the part of any of the doctors attached to the above hospitals.    In fact, there is no proof that the operation conducted by R1 was faulty or that the treatment given by the doctors attached to the hospitals was un-approved nor there was negligence on their part and therefore dismissed the complaint 

8)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that pulmonary oedema associated with febrile illness was caused while she was operated for appendectomy on 13.6.2007.   R1 is ill-equipped to conduct the said operation evident from report of   Konark Diagnostic Centre.    The very fact that in Ex. B1 there was a mention that “the patient was given spinal anaesthesia in the middle of surgery.  Patient saturation suddenly dropped and was emergently tabulated.   After that patient developed pulmonary oedema.”  Later her  condition became serious.  R1 had fabricated the case sheet evidenced from the fact that it was given to her in 2009 for the operation conducted in June, 2007.   Subsequent improvement on the treatment given by R3 will not exonerate either R1 or R2 in  treating her with requisite medicines.  Due to wrong diagnosis and incompetent treatment given by R1 & R2 she was forced to spend the amount with R3 which she could have avoided.    There was ex-facie negligence and therefore prayed that the compensation sought by her be granted.

9)                 The points that arise for consideration are:

i)        Whether  there was negligence  in conducting  surgery  by Op1.

                   ii)       Whether there was negligence  in post operative treatment?

10)              It is an undisputed fact that the complainant was admitted  in R1 hospital  on 13. 6. 2007  when she suffered from severe abdominal pain.   In fact when she got pain on 11.6.2007 she went to  Sai Baba Nursing Home at Shadnagar  and the doctors advised  her to seek the advise of the surgeons  and follow up.    On that she came to R1 hospital on 13.6.2007 at   01.15 a.m.   When she was admitted  she had abdominal  pain associated with vomiting  from 2 days  and fever since 3 days.     It was diagnosed as  perforated appendix  and advised to undergo surgery.   The operation was conducted  on 13.6.2007 at  1.00 p.m.   While conducting operation she  developed shortness of breath and oxygen concentration had decreased.   They had noticed  auscultation of lungs.     According to Op1  in fact  anaesthetist  had stabilized the patient’s condition  from  pulmonary oedema.    After discussing with Cardiologist and  anaesthetist    they advised  to shift the complainant to a higher centre where  intensive care management  and ventilator support  were available.    It is its further case that at the time of admission  itself  appendix has become  gangrenous  and perforated with local collection of pus in the abdomen (RIF).    They are not due to  operation conducted by them in the hospital.   When the patient had developed breathlessness  they themselves admitted  her into R2 hospital  where  the patient was given treatment for  pulmonary oedema.   R2  on examination  found that she had  recurrent  episodes of flash pulmonary  oedema  with falling oxygen saturation.    In fact after giving treatment they themselves advised  the patient to be shifted to a higher centre.    On that they have taken her to  R3 hospital where they put her  in AMC  on ventilator support, isotropic support,   antibiotics and gave necessary treatment.    Finally her condition  became normal  and she was discharged on  23.6.2007. 

11)              At the outset, we may state that for the reasons best known when serious allegations were made against R1 except filing counter he did not choose to file affidavit evidence denying the evidence of complainant.  R2 and R3 filed counter/counter affidavit naturally defending their action  or explained the complications  that were led to admit  with R2.      He did not file separate evidence by way of affidavit denying the negligence attributed to him.    According to him, the provisional diagnosis was acute appendicitis and therefore advised to undergo operation.  After taking consent surgeon was called who diagnosed it as  perforated appendicitis and  advised USG of abdomen along with other investigations.    He also alleged that the patient was brought in septicaemia  condition.   The patient developed shortness of breath and there was decrease in oxygen levels.   Crypts were   noticed on auscultation of lungs.  According to them the anaesthetist had treated her condition and stabilised the patient from pulmonary oedema.    However, after evaluating  her condition they thought that she should be shifted to a higher centre, and accordingly shifted to R2 hospital where critical care and ventilator support were available. 

12)              The fact that she had toximia  due to gangrenous appendicitis and perforated RIF was not made a mention initially in the case sheet.  R2 in fact mentioned that when the patient was brought from R1 hospital she had “recurrent episodes of flash pulmonary oedema with falling oxygen saturation.”  Though they had treated, in view of the anxiety of the attendants she was decided to be shifted to R3 hospital. When patient was brought to R3 hospital she had severe dyspnoea and shock with history of “appendectomy of 48 hours prior to her admission in their hospital.”    They had mentioned that the patient developed “pulmonary oedema associated with febrile illness.”    The patient was put in AMC on ventilator support, isotropic support and antibiotics.  After giving necessary treatment her condition became improved.   Later she was shifted to ward and finally she was discharged on 23.6.2007 when she became normal.   

13)               Since the patient  had  admittedly  developed  complications even on the  operation table  and even according to  R1,  anaesthetist  had  stabilized her condition, neither the affidavit of R1  nor that of  the anaesthetist   was filed.    When the complainant sought for case sheet through her lawyer notice under Ex. A58 in the month of November, 2007, however, the same was returned with endorsement ‘Superintendent was absent continuously for 7 days and hence returned.”   Undaunted again, they issued notices under Ex. A60 on 7.1.2008, Ex. A61 on 24.1.2008, Ex. A63 dt. 5.2.2008.    All of them were returned on one ground or other.    However, Ex. A62 notice was received by R1 under acknowledgement Ex. A64.   He did not choose to give reply nor send  copy of the case sheet.   What  all the complainant  having was Ex. A1 directing her to undergo tests.    Exs. A2 to A5 bills evidencing payment of amount.    For the first time they filed the case sheet on 16.6.2009 at the time of enquiry.    At the cost of repetition, we may state that except filing case record Ex. B1 no affidavit was filed to substantiate the truth or otherwise of the entries noted therein. 

14)              We may recall herein that the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 came into force  with effect from  6.4.2002.     They stipulate that :

“1.3.1 Every physician shall maintain the medical records pertaining to his / her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India.

7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of three years as per regulation 1.3 and refuses to provide the same within 72 hours when the patient or his/her authorized representative makes a request for it as per the regulation 1.3.2.

As such the patient is entitled as of right  to his/her  medical records.    The medical practitioners  can no more refuse to furnish  the copies of record  with all particulars.  

15)              At the cost of repetition, we may state that R1 could not explain  as to why  the patient had developed  pulmonary oedema.   The medical literature  on that mentions that :

Pulmonary edema occurs when the alveoli fill up with excess fluid seeped out of the blood vessels in the lung instead of air. This can cause problems with the exchange of gas (oxygen and carbon dioxide), resulting in breathing difficulty and poor oxygenation of blood. Sometimes, this can be referred to as "water in the lungs" when describing the condition to patients.  Pulmonary edema can be caused by many different factors. It can be related to heart failure, called cardiogenic pulmonary edema, or related to other causes, referred to as non-cardiogenic pulmonary edema.

Non-cardiogenic pulmonary edema can be commonly caused by the following:

·                          Acute respiratory distress syndrometrauma, lung injury, inhalation of toxins, lung infections, cocaine smoking, or radiation to the lungs. In ARDS, the integrity of the alveoli become compromised as a result of underlying inflammatory response, and this leads to leaky alveoli that can fill up with fluid from the blood vessels.

·                          Kidney failurekidney disease,dialysis

·                          Brain trauma, bleeding in the brain (intracranial hemorrhage),severe seizures, or brain surgery can sometimes result in fluid accumulation in the lungs, causing neurogenic pulmonary edema.

·                          A rapidly expanding lung can sometimes cause re-expansion pulmonary edema. This may happen in cases when the lung collapses (pneumothorax) or a large amount of fluid around the lung (pleural effusion) is removed, resulting in rapid expansion of the lung. This can result in pulmonary edema on the affected side only (unilateral pulmonary edema).

·                          Rarely, an overdose onheroinmethadone

·                          Aspirin

·                          Other more rare causes of non-cardiogenic pulmonary edema may includepulmonary embolismeclampsia in pregnant women.

16)              When the complainant has been  repeatedly requesting  them to furnish   her medical record there is no reason why  copy of which was not furnished.   Learned counsel for the complainant contended that  obviously in order to  note the entries in their favour, covering up whatever deficiencies   in treatment, it was not given.   Complainant despite raising the contention, R1 did not choose to give any explanation for not furnishing a copy of  case sheet  which IMA regulations  stipulate to furnish.   Non-furnishing is not due to innocence.     

17)              Earlier  there was no mention that there was  perforation of appendicitis or it has become gangrenous.   They got  USG.  Except signs of  acute appendicitis  and tenderness  the fact that  there was pus, septicaemia  set in was not made a mention.  Lungs were clear.  Obviously she  had fever and vomitings.    She came from Shadnagar to  Hyderabad for undergoing  appendectomy.   In fact, a perusal of consent form  shows that  originally in the pre-operative  assessment  these facts were not  mentioned  while taking consent  what all it was stated is  that  “patient is suffering from  acute appendicitis  and needs to undergo  emergency  appendectomy surgical procedure under spinal/general anaesthesia.    At coloum No. 4  it was initially mentioned : The higher risk in this patient is  due  to ‘delay in treatment’ , however the same was struck off and  noted  as  ‘septicaemia’. Evidently this was introduced to cover up an important lacunae.   

18)              In anaesthetist record  a mention was made that the “operation was  commenced at  12. 30 p.m.    “At about 1.00 p.m. “patient was not maintaining saturation   in spite of  100%  O2C mask, then converted  to GA and IPPV done.   Came out from   single doses……  relevant  and spontaneous  respiration  is there ….   At 1.10 p.m.  the fact that  “the surgery  is over and  then pulmonary oedema developed.  Lungs crypts  present.   IPPV is continued.”  

19)              R1 who conducted the surgery did not file his affidavit evidence nor explained the subsequent complications that have arisen at the time of operation.    Since he did not file his affidavit evidence  nor  explained  these complications he shall be held guilty of  deficiency in service or negligence.  He dare not  explain the steps  he had taken for those complications.   In surgery notes  what all  was mentioned  is “ Abdomen  opened by Mc’buneys incision.  Appendix  found, gangrenous,   i.e., local pus.  Appendectomy done. Local wash given ………  Wound closed in lungs.”    Only at  page 15  of the progress notes  for the first time there  was a mention  that there was  perforated appendicitis, and  later all these entries were  noted.    Up till 15^th page  there was no mention that  the patient  had  perforated appendicitis and that there was septicaemia.   Since her condition had  deteriorated and R1 could not  contain fall of  oxygen saturation  she was shifted to R2  which R1 admits by stating  that  they had accompanied  her to  R2 hospital.   The reason as to why  he  took her  to R2 has to be explained.   Undoubtedly  R1 could not diagnose nor  had wherewithal  when the complications arise  during  the operation.    In fact R2 could not administer the medicines to contain the recurrent episodes of   flash pulmonary  oedema  with falling oxygen saturation  and attendant complications.   Finally she was shifted to  R3 hospital  where,  in view of  facilities viz.,  AMC, ventilator support, isotropic support  etc. she was survived.  When the complainant could prove beyond doubt  that R1 had  conducted the surgery  without taking  minimum precautions  and without necessary wherewithal  in case of  complications arise its  constitutes negligence.    R1 ought to have referred the case  immediately either to R2 or R3 or any other super speciality hospital  where facilities were   existing in case of emergency.   Non-traversing  of  evidence of  complainant, R2 & R3  itself is sufficient to state that since R1 had no explanation, he did not do so. 

20)               Learned counsel for  R1 contended that  no expert evidence was let in, in order to prove that  there was negligence on the part of R1 while conducting surgery or treating the patient.    In fact  recently  the  Supreme Court  in  V. Kishan Rao Vs. Nkhil  Super Speciality Hospital  Civil Appeal No. 2641/2010, exhaustively considered the entire concept of  medical negligence right from ‘Bollam’   case up to Martin  D’ Souza case.  It held     

42. It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man.

In fact  the principle of  re sips loqutur  was also considered. 

47. 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 the respondent to prove that he has taken care and done his duty to repel the charge of  negligence.

21)               The anaesthetist  in his report  had categorically mentioned that she had  developed pulmonary oedema at the time of operation.   When she had developed complications  R1 who  conducted surgery  along with  anaesthetist  are the best  persons to  explain  as to how her condition has become worsened.  Except routine  denials by way of counter,  no evidence was let in.   Even when she was shifted to R2 hospital, her condition was not improved.    They themselves referred to R3 a super speciality hospital  where her condition  became normal.    An  adverse inference could be drawn for non-examination or non-filing of the affidavit evidence.  But for the negligence, she could not have been admitted in R2 & R3  hospitals.  She was made to spend amounts  evidenced by  bills  marked as  Exs. A15,  A16,  A45,  A52,  A54  and  A56.  

No doubt all the bills were not filed.   Though the complainant alleges  that she had spent  Rs. 1,40,000/- she did not file all the bills.   The bills that were filed would come to around  Rs. 45,000/-    When the complainant could prove  that there was negligence on the part of R1  and made her to spend the amounts in R2 & R3 hospitals, we are of the opinion that  the complainant is entitled to  the amount spent towards treatment.    She was an inpatient  all through from 13.6.2007  to 23.6.2007.  Considering the nature of the treatment and  negligence that could be attributed to R1, we are of the opinion that  an amount of Rs. 1lakh  in all could be granted towards medical expenses and compensation.    Since we are awarding compensation, we do not intend to award  any interest. 

22)              In the result the appeal is allowed, consequently the complaint is allowed in part.  R1 is directed to pay Rs. 1 lakh  towards compensation together with costs of Rs. 5,000/-.   The complaint against R2 & R3 is dismissed but without costs.   Time for compliance four weeks. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  02. 07.  2010.

*pnr

“UP LOAD – O.K.”