M. Shreesha, Member
1. Aggrieved by the order dated 27.1.2017, in Consumer Complaint No. 03 of 2014, passed by the Telangana State Consumer Disputes Redressal Commission (in short “the State Commission”), the Complainant preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has dismissed the Complaint on the ground that there was no negligence on behalf of the first Opposite Party (hereinafter referred to as “the Hospital”) and also the second Opposite Party (hereinafter referred to as “the treating Doctor”).
2. The facts in brief are that the Complainant’s wife namely, Rajini Srikande (hereinafter referred to as “the Patient”) visited the Hospital on 5.8.2013 with the Complaint of pain in the Right Flank since two days coupled with fever and vomiting. It was stated that she was admitted in the Hospital at about 9.30 p.m. and paid an amount of 10,000. It was averred that as per the record got from Vijaya Diagnostic Centre dated 5.8.2013, the Patient had a Calculus measuring 12 mm noted in Proximal Ureter causing moderate dilation of Pelvicalycal system of Right Kidney. A Complete urine examination was done and Protein was noticed in the urine. At the time of admission, her Hemoglobin was found to be 9.3 gm% and total WBC count was at 26,800 cells/cumm as against the normal range of 4-11000 cells/cumm and she was diagnosed to have Right Upper Ureteric Calculus and was admitted for surgery. After preoperative work up and after pre-anesthetic checkup she was taken up for Right URS+DJ Stenting on 6.8.2013. But unfortunately, she expired on 7.8.2013 at about 1.45 a.m. It was averred that the surgery was not properly conducted and instead of local Anesthesia the Patient was administered general Anesthesia.
3. It was averred that in the death summary it was recoded as Cystoscopy + Right URS was done with Ureteric Catheter which revealed 9mm right upper Ureteric impacted Calculus. It was stated that Anesthesia was stared at 12.15 p.m. and ended at 12.45 p.m. and even the surgery was also started at 12.15 p.m. and ended at 12.45 p.m. It was noted from the intraoperative notes that URS was done but the Patient developed Bradycardia with Hypotension and therefore URS cell was abandoned and DJ stenting was also not done. The Patient was shifted to Critical Care Centre and ultimately she died of Cardio Respiratory Arrest secondary to sepsis and septic shock on 7.8.2013 at 1.45 a.m.
4. It was pleaded that the treating Doctor should not have given general Anesthesia having noted that the Renal Calculi were impacted and that there was pus formation which was seen in the scan. It was further pleaded that the Patient was not properly treated as she has developed Bradycardia and Hyper Tension. The Patient was not given proper care and prerequisite pre-investigative tests were not conducted prior to the surgery which resulted in the sudden death of the Patient. The Patient was 36 years old employed in HSBC drawing monthly salary of Rs. 20,000. On account of her premature death, the children who were minors suffered loss of their mother’s love and affection. A legal notice was issued on 7.11.2013 seeking compensation for the negligence for which the Hospital and treating Doctor replied vide letter date 31.12.2013 denying all the allegations. It was further averred that total DRS was done knowing fully well that Calculus was impacted and also there was pus formation at the spot and that there was protein in urea which caused sepsis and septic shock which would not have occurred if the total DRS was avoided by draining the pus and by inserting a Stent in the Ureter.
5. The Hospital and the treating Doctor filed their common Written Version stating that a minimum risk of Bradycardia and hypotension are also associated with any kind of Anesthesia and unfortunately the Patient developed Bradycardia and hypotension and expired. It was denied that the Patient died on account of general Anesthesia. It was stated that after pre-operative work up and pre-anesthetic check-up she was taken up for Right URS + DJ stenting on 6.8.2013. Her WBC count preoperatively was 13500. She was admitted in the Hospital in the evening prior to the surgery and started on broad—spectrum antibiotics. Cystoscopy and ureteroscopy revealed that she had 9 mm Right Upper Ureteric impacted Calculus. On dis-impacting the Calculus, cloudy and purulent urine was noticed. It was decided to abandon the stone breaking procedure and to insert a DJ stent instead to clear the infection. While performing DJ stenting unfortunately she developed sudden Bradycardia with Hypotension and had Cardiac Arrest. She was immediately shifted to Critical Care Unit and was put on a ventilator and inotropic support. Left radial cannulation was also done. She had wide fluctuations in blood pressure even with inotropic support. The Complainant was apprised of the situation and critical condition of the Patient. Unfortunately the Patient died. It was further stated that the Hospital and the treating Doctor were not negligent as standard and reasonable care was given by them and there is no evidence on record that a total DRS was done instead of graduated DRS can be construed as medical negligence.
6. The State Commission while dismissing the Complaint observed as follows:
“17. The complainant No. 1 in his proof affidavit, reiterating the allegations in the Complaint, based upon certain literatures, had attempted to find fault, in the procedure adopted by the opposite parties. It is the specific case of the opposite parties, that generally spinal anesthesia is administered for abdominal and lower limb surgeries and general anesthesia for any surgery. Opposite party No. 2 and the anesthesialogy team at opposite party No. 1 hospital explained to the deceased that either general anesthesia or spinal anesthesia could be given to her and advised spinal anesthesia as it is a surgery for abdomen. But the deceased opted for general anesthesia and insisted that she be given general anesthesia only. Accordingly she was given general anesthesia. This does not imply that general anesthesia is not safe. It is an accepted medical practice to administer general anesthesia or spinal anesthesia for surgeries throughout the world and generally they are safe. However, a very minimal risk of bradycardia and hypotension is always associates with any kind of anesthesia. Unfortunately the deceased developed bradycardia and hypotension and died. Moreover the deceased having understood about the risks involved in administering the general anesthesia or spinal anesthesia had given consent for the surgery under general anesthesia. Ex.A3 is the copy of consent form wherein the deceased had given her consent for administering the general anesthesia. It was also written on the consent form that patient insisted for General Anesthesia in spite of explaining the advantages and post-operative analgesia of spinal anesthesia. Therefore, it is apparent on the face of the record that there is no negligence on the part of the opposite parties in administering the general anesthesia to the deceased. It is on the insistence of the deceased only the opposite parties had administered general anesthesia though the opposite parties explained about the advantages of administering spinal anesthesia.
18. In support of their contention the opposite parties filed some excerpts printed in the book of “ Anaesthetic Complications in Urologic Surgery” by Mr. George T.Vaida, MD and Mr. Sudheer K.Jain, MD in Section 1 at page 60 of the said book reads as :
Because most urologic procedures are performed in an anatomic area primarily innervated by thoracolumbar and sacral nerve supply, these procedures are excellent candidates for regional anaesthesia and nerve blocks. The greatest versatility of regional anaesthesia relies on the fact that, if skilfully done, it can generally preserve pulmonary and cardiovascular functions in all patients. This gives maximum benefit or those with severe comor-bidities. Major contraindi-cations for regional anaesthesia are patient refusal, skin infections, sepsis, cardiac outflow tract obstruction (aortic stenosis, idiopathic hypertrophic sub aortic stenosis (IHSS), serious previous neurologic defi-ciencies, anticoagulation, shock, hypotension or allergies to local anaesthesia.
19. It is therefore clear from the above that the opposite parties administered general anaesthesia on the insistence of the deceased and after taking her consent on the consent form. It is also an accepted medical practice to administer general anaesthesia or spinal anaesthesia for surgeries throughout the world. Hence, we find no negligence on the part of the opposite parties in administering general anaesthesia to the deceased.
20. The Counsel for the complainant next contended that though the opposite parties noted there was proteinurea from the urine but they instead of bringing the infection under control proceeded for surgery.
21. It is to be seen that in patients who have, or might have an obstruction (blockage) of the kidney, an internal drainage tube called a “stent” is commonly placed in the ureter, the tube between the kidney and the bladder. This is placed there in order to prevent temporarily the obstruction. Common causes of obstruction of the kidneys and ureter are, kidney stone or its fragments moving into the ureter, either spontaneously, or occasionally following such treatment as shock wave therapy. Whenever there is an obstruction, pressure builds up behind the kidney. Due to high pressure, the function of the kidneys starts to suffer over a period of weeks. The obstruction can also cause stagnation of the urine, which can lead to infection and further damage the kidneys. It is, therefore, important to prevent obstruction of the kidney. It is not always possible to identify what has caused an obstruction and to treat this immediately. It is therefore essential to relieve the obstruction on a temporary basis, before treatment is carried out. Also, following an operation on the ureters, it takes time to heal and a temporary measure to prevent obstruction becomes essential. This is commonly achieved by inserting a ureteric stent to make a channel for the urine to pass and allow the kidney to drain. Temporarily, following an operation or after an instrument has been inserted into the ureter and kidneys.
22. A ureteric stent is a thin hollow plastic tube inserted into your kidney. It allows urine to drain from the kidney into your bladder when you have a blockage in your ureter (the narrow, muscular tube that connects your kidney to your bladder). The blockage is most commonly caused by a kidney stone but could be caused by a growth. The blockage in your ureter will be relieved, allowing urine to drain from the kidney into the bladder. Without the stent, the blockage may cause the kidney to work less well and in some cases, stop the kidney from working altogether. The procedure is very safe and you will recover quickly. Having a stent will help prevent infection and permanent damage to your kidney.
23. Therefore, it is an accepted medical surgical practice which necessitated during surgery to remove accumulated infected urine. Even the opposite parties prior to the surgery started prophylactic antibiotics on the deceased. The patient initial assessment, Consent Form, operative notes and progress record/doctor’s orders were in accordance with the death summary. The procedures adopted are noted in the operative notes. It is not the case before us, that the particulars noted therein are incorrect, and in fact pointing out any wrong, no argument was also advanced as if those entries are false, or the procedure noted therein are unnecessary or it is the deviation of the procedure, contemplated under the standard text, in respect of the Ureteroscopic Lithotripsy + Double J Stenting. Therefore, accepting the operation notes, as well the death summary, we have to say empathetically, that the alleged negligence, on the part of the opposite parties is baseless.
24. It is the further submission of the complainant, as per the medical literature if the patient had hydronephrosis the kidney stone might be removed with endoscopic surgery which uses tiny instruments to perform the procedure. They also submitted that the deceased died due to cardio respiratory arrest second to sepsis and septic shock. According to the medical literature sepsis causes tiny blood clots to form which can block oxygen and nutrients from reaching vital organs as a result the organs fail causing a profound septic shock this may cause a block in blood pressure and may result in death. The complainants further submitted that sepsis commonly originate from urinary tract infection and other causes. So on account of UTI the patient developed sepsis which resulted in septic shock and ultimately patient died due to cardio respiratory arrest. The patients with impacted calculus in ureter would have hydronephrosis, UTI, RBC and protein in urine. In cases of stone impaction, ureteroscopy DJ stenting has to be performed as the calculus does not allow the proper DJ stent placement. In case this fails, only then nephrostomy is performed. A nephrostomy is an artificial opening created between the kidney and the skin which allows the urinary diversion directly from the upper part of the urinary system.”
7. The learned Counsel appearing for the Appellant vehemently contended that the Patient had protein in her urine and to avoid Sepsis Ureteric Catheter ought to have been done; proper preparation of the Patient prior to the surgery with necessary pre-anesthesia was not done; the Patient was not tested for Bradycardia or Hypotension which developed during the general Anesthesia despite the Patient having tested positive for ST depression+, that the Patient had died of Bradycardia and Hypotension and sepsis since the infection was not controlled and that there was no emergency to have conducted the surgery without stabilizing the Patient preoperatively.
8. On a pointed query by the Bench, the learned Counsel appearing for the Hospital and treating Doctor submitted that a 36 years old Patient with ST depression+ is a non-specific sign and not indicative of Ischemia; that it indicates only electric signals; that antibiotics were given for two days; that if surgery was not performed at that point of time septic shock would have occurred; that it was a case of Impacted Calculus; that the standard protocol for a 36 years old with ST depression is nothing specific and does not require medication; that the Patient was a known Hypotension as can be seen from the discharge summary; that infection had set in and the Patient had died of sepsis despite treating the Patient with high end antibiotics and therefore no negligence can be attributed either to the Hospital or the treating Doctor.
9. It is the main contention of the Complainant that the Patient died due to Cardiac Respiratory Arrest secondary to sepsis a day after the surgery was performed and that in case of Bradycardia general Anesthesia is to be avoided as the Patient had protein in the urine, high number of RBC cells, pain in the abdomen, urine tract infection and fever on account of hydronephrosis for which General Anesthesia could not be advised as it would result in Bradycardia. The facts not in dispute are that the Patient was admitted in the Hospital on 5.8.2013 for pain in the right flank with history of fever and vomiting and was diagnosed to have Right Upper Ureteric Calculus for which pre-operative, pre-anesthetic checkup was done and the Patient was taken up on 6.8.2013 for Right URS+DJ stenting. It is an admitted fact that the Cystoscopy + Rt URS was done with ureteric catheter which revealed 9 mm Right Upper Ureteric impacted Calculus. It is the case of the Respondents that the calculus is an impacted one Rt URS done to dis-impact the stone and to place DJ stenting. On dis-impacting the Calculus, cloudy and purulent urine was noticed. While performing DJ stenting, Patient developed sudden Bradycardia with Hypotension and had cardiac arrest and therefore, further procedure was abandoned. It is also not in dispute that the Patient was shifted to Critical Care Unit and put on ventilator and inotropic support. On 7.8.2013 at about 1.00 a.m. the Patient had cardiac arrest and expired at 1.45 a.m. The death summary reads as follows:
“Mrs. Rajani Shrikhande 36 yrs. old female presented with pain in right flank since 2 days associated with fever and vomitings; treated pre-operatively with high-end antibiotics for 48 hours. She was diagnosed to have Rt upper ureteric calculus and was admitted for surgery. After pre-operative workup and pre anesthetic chek up she was taken up for Right URS + DJ stenting on 6.8.2013. Cystoscopy + RT URS was done with urteric catheter which revealed 9 mm right upper ureteric impacted calculus. Calculus tried to push back. As the calculus is an impacted one Rt URS done to disimpact the stone and to place DJ stenting. On disimpacting the calculus, cloudy and purulent urine was notice. While performing DJ stenting, patient developed sudden bradycardia with hypotension and had cardiac arrest. Hence further procedure was abandoned, patient was shifted to Critical Care unit and put on ventilator and inotropic support. Left radial cannulation was done. Wide fluctuations in blood pressures were noted even with the inotropic support. Patient’s attenders were counselled about the nature of the event and critical condition. Patient developed Metabolic and respiratory acidosis with oliguria. Antibiotics were upgraded (Meropenem), diuretics and hydrocortisones were added to her treatment regimen. Emergency haemodialysis was done. 20% human albumin infusions were given. ECG showed sinus tachycardia with diffuse ST-T changes for which cardiologist’s opinion was taken. On 7.8.2013 at 1.00 am patient had cardiac arrest once again and was revived with CPR and as per ACLS protocol. Inj. Atropin & adrenaline were given and CPR was continued. Patient further had cardiac arrest for which chest compressions were initiated and defibrillation was done. CPR was continued but rhythm was not traceable. CPR was further continued but there was no response. As there was no response despite best possible efforts & all supports, and ECG showed no electrical activity patient was declared dead at 1.45 a.m. on 7.8.2013.”
10. To decide whether the allegation of medical negligence on behalf of the Complainant against the treating Doctor and the Hospital, is justified, we find it a fit case to rely on a catena of judgments of the Hon’ble Supreme Court which has laid emphasis on what can be construed as ‘Duty of Care’. In Vinitha Ashok (Smt.) v. Lakshmi Hospital and Ors., I (2002) CPJ 4 (SC)=VI (2001) SLT 735=(2001) 8 SSC 731, the Hon’ble Apex Court while observing the skill of medical practitioners, referred to the following case laws:
30. This Court in Achutrao Haribhau Khodwa v. State of Maharashtra & Ors., 1996 (SLT Soft) 1000=1996 (2) SCC 634, had occasion to examine the test for determining negligence of reasonable skill, knowledge and care in the matter of performing his duties by a medical practitioner. After referring to the decision in Bolam v. Friern Hospital Management Committee(supra), and Rogers v. Whitaker, (1992) 109 ALR 625 [though reported in 1993 Australian Law Journal Reports Vol. 67 Part (2) 47], wherein the High Court of Australia has held that the question is not whether the doctors conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law and that is the question for the Court to decide and the duty of deciding it cannot be delegated to any profession or group in the community. Thus there has been divergence of view between Bolams case (supra), and Rogerss case (supra). In Sidaway v. Board of Governors of Bethlem Royal Hospital, (1985) 1 All ER 643, the House of Lords examined the principle of Bolam’s case and had accepted it as applicable to diagnosis and treatment in England. This Court in Laxman Balakrishnan Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, 1969 (1) SCR 206, has held as under :
“A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.”
31. The aforesaid principle has been reiterated by this Court in A.S. Mittal v. State of U.P., 1989 (3) SCC 223.
32. In Indian Medical Assn. v. V.P. Shantha, 1995 SCC (6) 651, this Court approved the following passage from Jackson and Powell on Professional Negligence:
“The approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.”
11. In the instant case, the Patient had a history of hypotension and had come to the Hospital on 5.8.2013, with an Impacted Calculus and Cystoscopy Right URS was done on 6.8.2003, with Ureteric Catheter, which revealed 9 mm Right Upper Ureteric impacted Calculus. It is an admitted fact that while performing the DJ stenting, the Patient developed sudden Bradycardia with Hypotension and had cardiac arrest and died on the very next day i.e. 7.8.2013. The Surgical Patient record shows that there was positive ST depression. There is no hospital record to evidence that this condition was treated and the Patient was stabilized cardiacally prior to administration of general Anesthesia for the purpose of Righ URS and DJ Stenting. There are no reasons given for the Patient having developed sudden Bradycardia with hypotension during the process of conduction of DJ stenting. In the treatment record dated 6.8.2013 lung consolidation was noted on the chart. The contention of the learned Counsel appearing for the Respondent is that in a 36 year old Patient, this ST depression is nothing specific and therefore has no nexus. The onus of explaining the reasons for the sudden development of Bradycardia with hypotension is not explained or supported by any documentary evidence. The entire treatment record does not show whether any cardiac evaluation was done though ST depression+ was noted specifically when the Patient was admittedly a known hypertensive and the same was recorded in the discharge summary. To reiterate, proper pre-operative evaluation by the cardiologist was not done prior to administration of general Anesthesia, when the Respondents themselves admitted in their written arguments that Bradycardia and hypotension are common complications of general Anesthesia. It is observed from the record that serum creatine was normal and hydronephrosis with normal creatine kidney and the ultrasound report shows that the other kidney had no issues and we are of the considered view that proceeding with the surgery without taking appropriate preoperative safety measures with respect to pre-investigative tests, stabilizing the Patient first as he also had infection with pus, especially in the light of fact that the Patient had a history of hypotension as can be seen in the discharge summary, does not amount to ‘Duty of reasonable Care’, a professional of reasonable expertise, ought to have exercised in those circumstances.
12. For all the afore-noted reasons, we are of the considered view that it is a fit case to place reliance on the judgment of Savita Garg v. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56, in which the Hon’ble Supreme Court has laid down the principle that the onus is on the Hospital to explain as to why the situation had occurred. In the instant case, a Patient who went in for surgery on 5.8.2013 expired on account of sepsis on 7.8.2013. The onus shifts on the Hospital and the treating Doctor to explain the reasons for the Patient’s death. We are of the considered view, that the State Commission had not addressed itself to the aspect of whether the Patient was stabilized pre-operatively in all respects. It is well settled that in a situation where medical negligence is alleged, the importance of medical record cannot be undermined. In the instant case there is no record of cardiac evaluation done or if any pre- anesthetic test dose was given prior to the administration of Anesthesia and prior to the conduction of the Surgery. Further, total DRS was performed when there was infection in the form of pus and there was protein in the urine.
13. For all the aforenoted reasons, we are of the considered view that the Hospital and the treating Doctor are jointly and severally liable for not having adhered to the standards of normal medical parlance as laid down by the Hon’ble Supreme Court in the aforenoted judgments namely, Vinitha Ashok (supra), Savita Garg (supra), Achutrao Haribhau (supra) and Laxman Balakrishnan (supra).
14. Now we address ourselves to the amount of compensation which can be awarded in this case. Keeping in view that the Patient is 36 years and was working in HSBC and was drawing approximately Rs. 20,000 as salary and also having regard to the fact that the children had lost their mother and the Complainant his wife and needless to add, the loss of companionship, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. By loss of consortium, the Courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Under the heading of loss due to pain and suffering and loss of amenities of the wife of the claimant, Kemp and Kemp write as under:
“The award to a plaintiff of damages under the head “pain and suffering” depends as Lord Scarman said in Lim Poh Choo v. Camden and Islington Area Health Authority, “upon the claiamant’s personal awareness of pain, her capacity of suffering. Accordingly,
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no award is appropriate if and insofar as the claimant has not suffered and is not likely to suffer pain, and has not endured and is not likely to endure suffering, for example, because he was rendered immediately and permanently unconscious in the accident. By contrast, an award of damages in respect of loss of amenities is appropriate whenever there is in fact such a loss regardless of the claimant’s awareness of the loss.” 15. In Halsbury’s Laws of England, 4th Edn., Vol. 12 regarding non-pecuniary loss at page 446 it has been said: “Non-pecuniary loss: the pattern— Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.” 16. We find it a fit case to place reliance on the judgment of the Hon’ble Supreme Court V. Krishan Kumar v. State of Tamil Nadu & Ors., 2015 (9) SCC 388, wherein the Hon’ble Apex Court has relied on the principle of restitutio in integrum , wherein it was held that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event. 17. The loss of love and affection of the mother and that of a wife cannot be undermined. A lumpsum compensation of 20 lakh is being awarded to meet the expenses incurred, the mental agony suffered and for the loss of love and affection on account of the death of the Patient and further keeping in view her salary particulars. The salary certificate dated 1.3.2013, issued by HSBC Bank filed and marked as Ex. A9 evidences that the Patient was earning a salary of 19,162 prior to her death. Even if we take her life expectancy to be 65 years, the lump sum compensation we have awarded cannot be considered to be excessive. 18. In the result, this Appeal is allowed and order of the State Commission is set aside and we direct the Hospital and the treating Doctor jointly and severally to pay an amount of 20 lakh to the Complainant within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 9% per annum from the date of filing of the Complaint till the date of realization. We also find it a fit case to award costs of 10,000. Appeal allowed.