J. JAYARAM, JUDICIAL MEMBER
The case of the complainant is as follows:
2. The complainant’s husband B.V. Ramana Rao, aged 46 years, employed as Asst. General Manager, State Bank of India, Chennai, went to the opposite party’s hospital on 6-4-2007 for ‘Executive Health Check Up’, to which the bank officials are entitled. In the hospital various tests were conducted by the opposite parties. As per the Director’s instructions, the hospital authorities informed the complainant that there was loss of weight up to 8 Kgs. and they suggested him to take CT Scan of the abdomen. Accordingly, on 10.04.2007, he underwent CT Scan of abdomen; and after that he fell down unconscious. The hospital staff helped him and called the Doctor who informed the complainant that he had low BP and that is the reason why he became unconscious and he was taken to Intensive Care Unit and they came to know that anesthesia was not given properly and that the Sodium contrast was not suitable and hence he became unconscious. This clearly shows that proper treatment was not given by the Doctors and this amounts to negligence. The CT Scan of the abdomen showed symptoms of mild enlargement of the Liver and Spleen. The CT Scan process was conducted by the 2nd opposite party who is a Gastroenterologist and the Doctor informed them that he would be alright after 15 days of treatment; but his weight was decreasing and following the advice of the Doctor, he postponed joining duty.
3. Later, they met the 2nd opposite party, who advised him to undergo test for TB and as per his advice, X ‘Ray was taken on 10-4-2007 which revealed some mild stain (fluid) in the Lungs, and X’ Ray was taken as early as on 10-4-2007 but only on 21-4-2007, the Doctor / 2nd opposite party informed them that he suspected TB and in the meantime the Doctor could not diagnose the disease which amounts to gross negligence and deficiency in service on the part of the 2nd opposite party. As advised by the 2nd opposite party, they met the Pulmonologist Dr. Vigil Rahulan, who informed them that her husband was having lymphomatic problem or TB, and he was advised to have a check up with the 2nd opposite party and also to go in for Laparoscopy to find out whether he was suffering from TB. On 23-4-2007 when her husband met the 2nd opposite party, the 2nd opposite party insisted him to undergo Laparoscopy as they were suspecting only TB or lymph node cancer. When questioned, the Doctor explained that her husband was not put on TB medicines since they had to diagnose the type of TB by doing Diagnostic Laparoscopy. On the advice of the Doctor, Laparoscopy was fixed at 9.00 am on 24-4-2007. Her husband was taken to the Operation Theatre on 24-4-2007 at 8.30 am; but the 2nd opposite party turned up only after 11 am and the 2nd opposite party at about 12 Noon, informed the complainant that her husband had anesthesia problem. On 24-4-2007 her husband, who was in the ICU looked very weak and could not move and when he took food there was vomiting and he was uneasy, uncomfortable and very weak and so he wanted the complainant to be present with him but she was not allowed to stay with the patient in the ICU and at about 1.00 pm, he was sent to the room in a stretcher and he was not in a position to stand or walk and he complained of suffering from severe stomach pain and breathlessness and his body was becoming cold with sweating but nobody attended on her husband, and his condition was deteriorating and he was further suffering from breathlessness and also started stammering. Later, the 2nd opposite party came to the room at about 3.30 pm, and on examining her husband and checking his pulse and BP he immediately sent for the ICU Van and told the complainant that her husband’s BP was low and that after sometime BP would be alright. Her husband was sent to the ICU again. Later the Biopsy test report revealed that he was suffering from TB in advanced stage and the stage of the patient was not disclosed by the Doctor to the complainant which amounts to unfair trade practice, negligence and deficiency in service. On 26-4-2007, her husband was again shifted to ICU and he was in coma stage and his condition became worse. There was no TB Specialist available in the opposite parties’ hospital. The act of the opposite party shows the negligence of the Doctor who did not diagnose properly. On 26-4-2007 at about 5 am, the ICU Doctor called the complainant on mobile phone and wanted her permission to put her husband on ventilator. The complainant gave her consent to put him on ventilator and her husband was put on ventilator at 7.00 am. The complainant informed the ICU Doctor that her husband’s condition was very critical and he was suffering from breathlessness. Again at 9.00 am the 2nd opposite party told the complainant that her husband had Extensive Hyperplasic Tuberculosis and he developed septicemia and he was shifted to ICCU when he was in coma stage. The complainant requested the Doctors to approach the TB Specialist and the Doctors replied that there was no TB Specialist in their hospital. The complainant’s husband died on 27-4-2007 morning.
4. In the hospital report, it is noted that Laprotomy was done instead of Laparoscopy which was not revealed till the end. It is further stated that there was perforation in the intestine which caused septicemia resulting in death. Had the complainant been informed of the necessity to do Laprotomy, she could have obtained second opinion from some other Doctor. Laparotomy ought not to have been done when the patient’s condition was very weak, and material facts were suppressed by the hospital authorities and no proper medical aid was given which resulted in the death of the complainant’s husband. It was diagnosed as Liver enlargement on 24-4-2007 at the first diagnosis, and wrong treatment was given by the 2nd opposite party for 10 days. The complainant’s husband was holding the post of Assistant General Manager of the State Bank of India at the age of 46 years, and he had lot of opportunities and avenues for promotion. Hence the complaint, praying for direction to the opposite parties 1 and 2 to pay a sum of Rs.75 Lac towards compensation for the negligence committed by them to the complainant’s husband during the course of investigation and further management, and a sum of Rs.10 Lac towards mental agony caused to the complainant and a sum of Rs.5 Lac towards damages and a sum of Rs.85,000/- towards medical expenses incurred and to pay costs of the proceedings.
5. The 1st opposite party filed version stating that he is the Founder, Chairman and Managing Director of the hospital and that he is an Orthopaedic Surgeon of international repute with long and distinguished career and the 2nd opposite party is with the hospital for about 3 years and that he is trained in Switzerland having wide experience in Laparoscopy surgery and that there is no negligence or deficiency in service on the part of the opposite parties in the treatment of the complainant’s late husband.
6. The 2nd opposite party filed version stating as follows:
The complainant’s husband came to the hospital on 6-4-2007 for routine Master Health Check-Up and in the course of the check-up various tests, X’ Ray, Ultra Sound Abdomen etc. were done and since the Ultra Sound Abdomen showed enlarged Liver and Spleen (heptosplenomegaly) and ascitis, the case was referred to him. After examining and seeing the reports and the patient’s history of weight loss etc. he advised CT Scan of the Abdomen. The patient was very tired after all the tests and he left the hospital accepting to come back later to have the CT Scan. The patient came back on 10-4-2007 and several tests including CT Scan with contrasts were done. Many patients had Laparoscopic reaction to the dye used for CT Scan contrast and this patient also had some shivering and so he was admitted to the ICCU as an out-patient and was administered the allergic medication and discharged later the same day, and that CT Scan was not done under anesthesia. So, the patient felt very tired and was anxious to go home as some of the investigations advised by him had not been completed and some other test reports were still awaited. He allowed the patient to go home asking him to come back with all the investigation reports and for the time being, taking into account the patent’s clinical history he made a provisional diagnosis of infective hepatitis and described broad spectrum antibiotics and other drugs and the patient was asked to come back for review. He advised the patient to meet him immediately after completing all the investigations and collecting the various reports. But however, the patient met him only on 21-4-2007. After examining the patient and seeing the CT Scan report, he suspected that the patient might have lymphoma / TB related disease and so he advised CT Scan of the Chest and further tests and investigations etc. He also directed the patient to see the Pulmonologist Dr. Vigil Rahulan and on seeing the patient’s CT Chest Scan he noticed mediastinal and ancillary nodes. The multiple nodules in the abdomen and the chest and the pleural effusion from the Lungs indicated that the disease, whether Lymphoma (Cancer) or TB was widespread. In order to diagnose the disease and commence the treatment biopsy test was required and since pleural effusion was minimal Dr. Vigil Rahulan advised tissue diagnosis through biopsy before commencing anti TB medication. But the patient met him again and was directed to be admitted on 23-4-2007 for diagnostic Laparoscopy with peritoneal biopsy and the patient was teken up for diagnostic Laparoscopy on 24-4-2007. On 24-4-2007, they found abdominal organs completely frozen, plastic feel of the intestines, multiple nodes with mottling; on account of this, tissue could not be taken through Laparoscopy and so he had to widen the aperture and perform Laparoctomy and took tissue for mesenteric nodule biopsy and he was shifted to his room at 1 pm. Later in the afternoon, the patient became breathless, his BP dropped and his pulse rate was high. Therefore, on his instructions, the patient was again shifted to ICU. The patient’s condition became very critical on 26-4-2007 morning and he became breathless and the blood Oxygen saturation started coming down because of his breathlessness and so the patient could not ventilate. On 26-4-2007, since the urine output was low, he was seen by Nephrologist Dr. Ganesh Prasath. CT Scan of Abdomen and Chest, and Echo Cardiogram were done to arrest the patient’s deteriorating condition. Biopsy results received on 26-4-2007 showed that the patient had TB and so anti Tuberculosis medication was commenced. The patient’s condition continued to be critical and so a re-look Lapractomy was done on 27-4-2007 and a small ileal perforation was noticed which could not be sutured because of the friable nature of the tissue and so tube enterostomy was done and the patient was shifted to ICU at 9.30 am and the patient went in to Cardiac arrest and was declared dead at 11.10 am on 27-4-2007.
7. The patient had a severe form of Tuberculosis, wide spread, a-typical and a-symptomatic form of TB and the diagnosis could be made only through tissue biopsy. During the Master Check Up, there was no indication of the disease. The toxins released by the diseased had affected the various organs in the patient’s body resulting in septicemia and septicemia would have caused perforation. 8. In any event, what was done at the MIOT hospitals was only a diagnosis of the disease. Further, since tissue for biopsy could not be obtained through Laparoscopy, the aperture so small was enlarged and the tissue for mesenteric Nodule biopsy was taken, since tissue for biopsy could not be harvested through Laparoscopy, and Laparotomy had to be done. i.e. the aperture had to be enlarged. There is no negligence or deficiency in service or wrong diagnosis or unfair trade practice on the part of the opposite parties.
9. The third opposite party remained absent and was set exparte.
10. The complainant and the opposite parties 1&2 filed proof affidavits. Ex.A1 to A40 were marked on the side of the complainant and Ex.B1 to B11 were marked on the side of the opposite parties. No witness was examined on both sides.
11. The Points for consideration are:
(1) Whether there is negligence or deficiency in service on the part of the opposite parties 1&2, as alleged in the complaint.
(2) If so to what relief the complainant is entitled.
12. Point No.(1):
The complainant has filed the complaint claiming compensation from the opposite parties under various heads, for the death of her husband in the hospital of 1st & 2nd opposite parties on 27-4-2007, caused due to the negligence and deficiency in service on the part of opposite parties 1&2.
13. First, it is pertinent to note that the deceased went to the opposite parties hospital on 6-4-2007 for Executive Health Check Up to which bank officials are entitled and we have to note that he did not go to the hospital for taking treatment for any disease or for any complaint; but however during the check up and in the process of diagnostic procedure he died.
14. On perusal of the relevant records, and on consideration of the evidence, it comes to light that there is negligence and deficiency in service on the part of the opposite parties 1&2 at every stage of the diagnostic procedure, leading to the death of the complainant’s husband.
15. We have to note that all the events in the averments in the complaint are admitted by the opposite parties 1&2, in their version, though the opposite parties would not admit their negligence or deficiency in service on their part.
16. There is an allegation in the complaint that soon after taking CT Scan abdomen on 10-4-2007 when the deceased came out, he fell down unconscious and the hospital staff helped him and the Doctor informed the complainant that the deceased became unconscious because of low BP and he was taken to the Intensive Care Unit.
17. It is admitted by the 2nd opposite party in his version that the dye for the CT Scan may cause severe allergic reaction in many cases. If so, at the time of CT Scan, the Doctor administering dye ought to have taken all the precautions and ought to be ready with the medicines and equipments by the side which is the usual and normal procedure; but the 2nd opposite party knowing fully well that the dye might cause severe allergic reaction in many cases, he was not prepared to face the situation. Instead of observing the patient’s condition for sufficient time he simply allowed the deceased to go home, as a result of which, the deceased happened to fall down unconscious and only after that he was taken to the ICU for medication and treatment, which would go to show that the 2nd opposite party did not act with reasonable care and diligence. This is a clear case of negligence and deficiency in service on the part of the opposite parties 1&2.
18. It is further relevant to note that in para 3 of the version, it is stated by the 2nd opposite party that Ultra Sound abdomen of the deceased showed enlargement of liver and spleen (heptosplenomegaly), and ascitis, on account of which the patient was advised to see him and on examining the patient, and on seeing the reports, and the patient’s history of weight loss etc. he advised to take CT Scan of abdomen. Consequently, the process of diagnosis and medication have proceeded on the wrong assumption of infective hepatitis, instead of TB, which was later found to be the correct diagnosis. This is a matter of negligence and deficiency in service on the part of the opposite parties 1 & 2.
19. It is further relevant to note that the deceased died on 27-4-2007 not due to Tuberculosis which is the final diagnosis but he died due to Septicemia caused by negligence and negligent handling of the case by 2nd opposite party by performing laparotomy, enlarging the aperture and not being able to manage the perforation in the intestine and performing re-look laparotomy on 27-4-2007 when the patient was struggling for life in a very critical condition. Therefore, it is obvious that the patient did not die of the decease (TB) but he died due to septicemia caused by the improper diagnostic procedure of trial and error by the opposite parties. Further, we have to note that as per the version of the 2nd opposite party, septicemia could not be controlled and further the perforation found in the intestine could not be sutured and no effective steps were taken to set it right. Further, we have to note that in Ex.B9, dated 27-4-2007 which is the operative record of the opposite parties, the time when the operation began and when the operation ended – all these particulars are conspicuously absent and we have to note that only during the surgical procedure, they have noticed a small perforation in the intestine which could not be sutured. In these circumstances, this operation / laparotomy done when the patient was in a very critical condition and was about to die, is improper and there is every possibility of death having occurred due to the immediate cause of laparotomy; and that may be the reason why the timings are not noted. We find that repeated mistakes have been committed by the opposite parties in the diagnostic procedure which amount to gross negligence and deficiency in service on the part of the opposite parties 1&2.
20. Further, we have to note that in the version, the 2nd opposite party has stated in a casual manner that 'in any event what was done at the MIOT hospitals is only a diagnosis of the deceased'. This contention appears to mean that since it is only a diagnostic procedure they can be negligent and that their negligence cannot be questioned. It is quite unreasonable and it appears as though according to them, they are not responsible for the inefficient management and improper treatment in the process of investigation and diagnosis.
21. Further, in the version, the 2nd opposite party has stated that he expected the deceased to meet him immediately after completing all the investigations and collecting various reports, but the patient met him only on 21-4-2007 whereas the fact remains that in Ex.A14, dated 10-4-2007, the 2nd opposite party has written that the deceased should come for review after 15 days. Therefore, what is stated in the version is false. Further we have to note that on the reverse of Ex.14, there is reference to TB which is endorsed on 21-4-2007. Therefore, it is unfortunate that they could not diagnose TB even in its advanced stage, even though they noticed the symptoms such as frequent cough as noted in Ex.A16 and loss of appetite, loss of weight, frequent cough, generalized weakness, night sweat and low grade fever which are the symptoms noted in Ex.A32 and the symptoms of night sweat and fever as noted in Ex.B3 which is the Pre-operative Anesthetic Assessment Chart. Evidently, this is negligence and deficiency in service on the part of the opposite parties 1&2.
22. We have to further note that most of the case records were misleading and appear to be fabricated in which the date and time are deliberately omitted for reasons best known to the opposite parties. Some instances are: Ex.A17 and A18 which is Systemic Examination and Lab Finding report and Ex.B3 and B9 Operative Record. Further we have to note that Ex.A1 is the document filed by the opposite parties which is not signed by anybody. We have to point out that at the top of Ex.B4, it is stated that laparotomy was done, whereas in the ensuing part of the record, it is noted as Diagnostic Laparoscopy. These amount to deficiency in service.
23. Next, we have to note that the consent of the complainant is not obtained when laparotomy was done. We find that Ex.B3 which is the Pre-operative Anesthetic Assessment Chart, the columns ‘Patient’s or Guardian’s Signature’ and ‘Signature of Witness’ are left blank without obtaining their signature for consent. Consent is obtained only when the deceased was put on ventilator as could be seen from Ex.B7 which makes it clear that consent of the complainant is obtained only on 26-4-2007 when the patient was put on ventilator in a very critical state. Therefore, as stated already, no consent has been obtained for the investigations and diagnostic procedure which took place prior to 26-4-2007 and consent in Ex.B7 has been obtained when the opposite parties found the patient to be in such a critical condition that he might collapse at any moment. It is evident from Ex.B4 that laparotomy has been done on 24-4-2007 under general anesthesia without obtaining the consent of the complainant. This is deficiency in service on the part of the opposite parties.
24. A contention of the opposite parties is that no expert’s opinion is placed before the Commission. We feel that there is no need for any expert’s opinion because all the facts are borne by records and when there is reliable and cogent evidence on record to substantiate the negligence of the opposite parties, we need not go in search of expert’s evidence. It is patently evident that there has been negligence and deficiency in service on the part of the opposite parties 1 & 2 right from the beginning till the end, throughout the process of investigation and diagnosis.
25. It is further to be noted that Dr. Vigil Rahulan who is said to have made the diagnosis as TB and who has treated the patient has not filed any affidavit or any report of diagnosis and treatment and he has not been examined as witness, and this goes against the opposite parties 1&2 confirming the deficiency in service.
26. It is well settled law that when the complainant has established her case, the onus shifts to the opposite party to rebut it and prove that there was no negligence; but no rebuttal evidence is adduced by the opposite parties 1&2 in this regard. We place reliance on the following decision of the Hon’ble Supreme Court where it is ruled as follows: (at Para No.32)
Nizam Institute of Medical Sciences vs.
Prasanth S. Dhananka and Others – reported in
'In a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.'
27. For the aforesaid reasons, we hold that the opposite parties 1&2 have been remiss in dealing with the deceased and the opposite parties have not done the investigation and the diagnostic procedure with reasonable ca
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re and diligence and there has been delayed diagnosis, gross negligence and serious deficiency in service on the part of the opposite parties 1&2, which caused the death of the complainant’s husband. We hold that the 3rd opposite party (The Medical Council of India) is an unnecessary party in the complaint and that there is no negligence or deficiency in service on their part, and the point is answered accordingly. 28. The complainant has claimed a sum of Rs.75 Lac towards compensation for the negligence on the part of the opposite parties; and Rs.10 Lac towards mental agony; and Rs.5 Lac towards damages; and Rs.85,000/- for the medical expenses, and costs. We feel that the claim is very much on the higher side. 29. Admittedly the complainant’s husband was aged 46 and was well placed holding the post of Assistant General Manager of the State Bank of India, Chennai, having bright future prospects. Unfortunately, the complainant has lost her husband under pathetic circumstances. In this context, we may note that in the decision of the Hon’ble Supreme Court stated supra, (Nizam Institute of Medical Sciences case) compensation of Rs.14 Lac awarded by the Hon’ble National Commission was enhanced to Rs. One Crore by the Hon’ble Supreme Court, in the case of a severely handicapped Engineering student. 30. Having regard to the facts and circumstances of the case, we feel that a sum of Rs.35 Lac would be the just and reasonable compensation for the gross negligence and deficiency in service on the part of the opposite parties 1&2 resulting in the death of the complainant’s husband; and in addition to this, a sum of Rs.5 Lac would be the just and reasonable compensation for the mental agony suffered and has to suffer throughout her life. 31. In the result, the complaint is dismissed as against the 3rd opposite party and the complaint is partly allowed as against the 1st and 2nd opposite parties, directing the opposite parties 1&2 to pay jointly and severally a sum of Rs.35 Lac (Rupees Thirty Five Lac only) to the complainant for the gross negligence and deficiency in service on their part, and a sum of Rs.5 Lac (Rupees Five Lac only) for mental agony (Rupees Forty Lac in total); and costs of Rs.10,000/- (Rupees Ten Thousand only) to be paid by the opposite parties 1&2 to the complainant. Time for compliance, three months from the date of receipt of this order and in case of default, the amount shall carry interest at the rate of 9% p.a. from the date of default till realization.