Oral Order: (R. Lakshminarsimha Rao, Member)
1. The opposite parties no.1 and 2 are the appellants. The first respondent filed complaint claiming an amount of Rs.11,00,000/- on the premise that the appellants did not exercise due care and skill in rendering treatment to her at the respondnet.no.1-hospital.
2. The case of the respondent no.1 as seen from the averments of the complaint is that she was undergoing treatment for back pain at the hospital of Gurnadha Rao at Khammam which did not yield any result and she approached the 1st respondent hospital on 30.04.2008 where the second appellant diagnosed her from suffering from 'prolapse of intervertebral Disc L4-5 and impigment on the Cal Sac2 lateral recess.' She was admitted in the 1st respondent hospital on 01.05.2006 and the 2nd appellant conducted laminectomy and discectomy upon her on 03.05.2008 and she was discharged on 12.05.2008 with advice to attend for review a month later.
3. The 1st respondent developed pain, oozing of pus and blood at the operation site and she consulted doctors at Kodad who informed her that the surgery was a failure and she approached the 2nd appellant on 25.07.2008 who informed her the failure of the surgery and advised her to undergo second operation which was performed upon her on 28.07.2008 which did not relieve her of the pain. The second appellant had taken away from the 1st respondent the discharge summary, ration card and Arogysree card which were returned to her at the intervention of The Human Rights Commission which directed Osmania General Hospital to treat the 1st respondent and the doctors there informed her that another surgery cannot be conducted and she has to take medicine and suffer from the pain lifelong. The District Medical Board issued certificate that the 1st respondent suffered disability to the extent of 70% and the 1st respondent lost her income during the period of treatment.
4. The appellant resisted the claim on the premise that the 1st respondent was discharged on 12.05.2008 after she was cured and sutures were removed and after having undergone thorough check-up to the satisfaction of representatives of the 2nd respondent. The 1st respondent was administered with antibiotics throughout her stay at the 1st respondent-hospital. On 25.07.2008 the 2nd appellant informed her that there was sinus and it was to be explored to find presence of infection in the deeper planes. No second surgery was conducted. The exploration of sinus revealed no infection in the deeper planes. The 1st respondent left the 1st-appellant hospital on 17.08.2008 against medical advice. The 1st respondent left the 1st hospital walking. There cannot be any temporary disability as noted in the certificate issued by the Medical Board.
5. The pain and suffering experienced by the 1st respondent is on account of her negligence in following the medical advice. The 1st respondent failed to produce expert opinion to show any negligence on the part of the appellants. The appellants did not collect any amount from the 1st respondent. The complaint is not filed within the period of limitation. The 1st respondent is not a consumer and she cannot file the complaint under the provisions of the Consumer Protection Act.
6. The second respondent contended that it is a facilitator to implement the scheme introduced by the government for providing cashless treatment to the members of below poverty line families and a memorandum of understanding was entered into between the first appellant hospital and insurance company wherein it was provided that the appellant no.1 hospital is responsible for any deficiency in service rendered by or claim made by any patient covered under the scheme. It is contended that the first respondent was admitted in the first appellant’s hospital on 1.5.2008 and the second appellant conducted surgery upon her and she was discharged on 12.5.2008 from the appellant no.1 hospital. It is contended that the second respondent has no knowledge of medical status of the first respondent and it paid the amount to the appellant no.1 hospital for the treatment administered to the first respondent. The second respondent prayed for dismissal of the complaint against it as no notice was issued to it prior to filing of the complaint and on account of no deficiency in service on its part as also that it being a facilitator, complaint is not maintainable against it.
7. The 1st respondent filed her affidavit and the documents, Exs.A1 to A51. On behalf of the appellants, the Managing Director of appellant no.1 and the appellant no.2 filed their affidavits and the document, Ex.B1.
8. The District Forum allowed the complaint on the premise that the appellants failed to take note of the renal problem that the 1st respondent suffered from prior to the time of operation and it held that there was no negligence on the part of the appellants in regard to conducting the surgery upon the 1st respondent and post-operative stage treatment. The District Forum held that the decision to perform surgery upon the 1st respondent constitutes deficiency in service on the part of the appellants.
9. The opposite parties no.1 and 2 have filed appeal contending that the District Forum came to wrong conclusion that decision of the appellants to perform surgery amounts to deficiency in service on the part of the appellants. It is contended that assessing the income of the 1st respondent at Rs.20,000/- is improper and that the District Forum failed to appreciate SLR test conducted at Osmania General Hospital. It is contended that the 1st respondent had stated that her condition was stable and she was discharged in good health condition.
10. The learned counsel for the appellants and the respondent no.1 have filed written arguments.
11. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
12. The 1st respondent was admitted in the 1st appellant hospital on 01.05.2008 and Laminectomy and Discectomy of L4-L5 was performed upon her on 02.05.2008. Prior to the date of admission she was diagnosed with ‘prolapsed intere vertebral disc at L4-L5 vertebrae’. In the discharge summary issued by the appellant no.1-hospital under the column it is noted that the 1st respondent was suffering from degeneration of disc bulge L4-L5, Disc moderately impinging on thecal sac and lateral recess. The District Forum found fault with the appellants not looking into the earlier treatment the 1st respondent undergone for her low backache.
13. The case record dated 7.09.2007 of Sri Ram Kidney Centre would indicate the 1st respondent suffering from pain in her right lion and bottom of the spinal chord. The investigation report issued on the same date, i.e., 7.09.2007 would show 4mm calculus and 5 mm calculus in left and right kidneys of the 1st respondent. The District Forum in paragraph 12 of the order discussed the negligence of the appellants in not taking note of the bilateral calculus present in the kidneys of the 1st respondent. The District Forum had considered the report of Osmania General Hospital and that of Sri Ram Kidney Center to come to the conclusion as under
In the month of November,2008 the complainant appears to have taken treatment in Osmania General Hospital, Hyderabad. The report of U.S. Scan abdomen contends in Ex.A49 shows that there was a 6 mm calculus in the right kidney right upper calyx. The impression given was right renal calculus So when there was calculus found in the month of September, 2007 and again the calculus was in the month of November , 2008 , we think that a proper investigation at the time of admission in the 1st opposite arty hospital would have certainly revealed presence or absence of calculus in the kidneys. It is highly probable that there was calculus. So the failure to secure investigation relating to renal problem at the time of admission in 1st opposite party hospital is doubtlessly an omission revealing negligence on the part of the opposite opposite parties'.
14. The conclusion of the District Forum that the appellants neglected to note the earlier treatment undergone by the 1st respondent in regard to renal calculus as also the medical record thereof is supported by discrepancy in the evidence of the appellant no.1 and the appellant no.2. The Managing Director of the appellant no.1-hsopital has deposed that he had gone through the medical record of the 1st respondent at the time she was admitted in the appellant no.1-hospital and the second appellant had stated that the 1st respondent was not suffering from any kidney problem and there is no mention of any of the medical record to the effect she was suffering from the kidney problem. The District Forum has rightly held :
The complainant had ailment admittedly for some time even prior to approaching the opposite parties. According to discharge summary Ex.A3 the complainant had revealed history of low backache and pain in (loins or left) leg. The diagnosis was PIVD that means Prolapsed Inter Vertebral Disc at L4 - L5 Vertebrae. Investigation mentioned in the discharge summary is noted as degeneration disk bulge L4 - L5, Disk moderately impinging thecal sac and lateral recess. The complainant had stated in the complaint that she was suffering from back pain from 2006 that she was undergoing treatment at Sri Ram Kidney Center, Khammam and she was diagnosed to be suffering from Kidney problem but she could not get relief from pains and there after on coming to know of Rajiv Aarogya Sree scheme she approached the 1st opposite party on 30.4.2008. The opposite parties do not say about earlier treatment taken by the complainant elsewhere. The Managing Director, 1st opposite party deposed during cross examination that he had verified the previous record of the complainant and that the complainant had no kidney problem during her stay in the 1st opposite party hospital. When the 1stopposite party had seen the previous record it must be held that the 1st opposite party was aware that the complainant had some problem with her kidney. DW -2, the 2nd opposite party deposed in his affidavit that the complainant was not having any kidney problem and now he re it is shown that the complainant had visited the 1st opposite party hospital for treatment of her kidney problem. The DWs 1 and 2 do not make a positive statement in their affidavits or in the written versions that the complainant was also investigated relating to kidney problem and that there was no indication of any problem with kidneys revealed by such investigation.DW-2 denied suggestions that the complainant had furnished diagnostic report from Sri Ram Kidney center, Khammam; that the 2ndopposite party performed surgery for a different ailment than that for which the complainant approached the hospital and that the 2nd opposite party had wrongly diagnosed the ailment of the complainant. When the 1 st opposite party had stated that he had seen the earlier medical record of the complainant and when the 2nd opposite party had diagnosed basing on investigation it is nothing but carelessness to proceed with the treatment for spinal problem without giving least attention to know the renal problem the complainant faced.
15. The District Forum observed that the 1st respondent not needed immediate surgery. The basis for the finding is medical literature. Except the medical literature, there is no other evidence placed on record to find fault with the course of treatment or line of treatment adopted by the appellants in choosing to perform surgery upon the 1st respondent. A perusal of MRI dated 29.04.2008 would show that there was disc bulge and the disc of the 1st respondent was degenerated. The Report indicates protrusion of disc impinging thecal sac and there was lateral recess. Basing on the medical literature, the District Forum in paragraph 14 of the order observed that there was no immediate need to conduct operation for the disc problem of the 1st respondent. The District Forum opined that when the 1st respondent had not suffered from pain in her legs and suffered from low backache, 'there will be no need for surgery and certainly no surgery would be ventured without keeping the patient on observation with a conservative treatment'. The District Forum observed:
'Most of the information available on medical filed on the internet including website of National Institute of Health (US) show that 90% of the persons having low back pain and degenerative disk would not require surgery. Only 10% of them require surgery. According to one article of medicine from wbmd.com relating to Herniated Disk, most people who have Herniated Disk do not need surgery and was symptoms tend to him to over time. Above 50% of the people for Herniated Disc in the low back recover within one month and 90% persons would recover within 06 months. Only 10% of the people with Herniated Disc problems would need surgery. Disc bulge and herniated disc are not one and the same. In case herniated disc there will be rupture of annulus (the otter sheath of the disc) and the nucleus (gel like inner substance in the disc) comes out and protrudes. In case of disc bulge there will not be rupture of annulus, but the disc bulges with some amount of outpouching. Disc bulge is patently lesser serious than erniated disc. The study also reveal that mere low backache cannot be an indication for immediate surgery. Persisting leg pain developing for at least 04 weeks even at non-surgical treatment would suggest the need for surgery.'
16. The finding that there was no immediate need to choose for surgery by the District Forum is not sustainable, for it is the treating doctor to choose the line of treatment to be adopted depending upon the attending circumstances and no definite opinion can be expressed basing on the view of an author found in the literature, by applying straight jacket formula not supported by any other evidence. The 1st respondent did not challenge competence of the second appellant. The District Forum recorded finding that there was no negligence on the part of the appellants during the stage of operation or during the post-operative stage. The District Forum opined:
'Developing infection at the site of surgery is another aspect pointed out by the complainant. Infection developing at the place of surgery is not uncommon and the medical officer giving report under Ex.A27 has stated that if the patient was given adequate antibiotic cover during postoperative period the surgeon cannot be responsible; that even if there is postoperative wound infection in good number of case the infection can be controlled/eradicated with necessary investigations and treatment and if the patient has not received adequate postoperative antibiotics the surgeon has to be pointed out. The complainant was discharged on 12.5.2008 after surgery. She was asked to come for review after one month. The complainant did not go to the opposite party hospital till 25.7.2008. She has not produced any documents to show that she attended the opposite party hospital at any time in between 12.5.2008 and 25.7.2008. Therefore if there was no proper medication in between 12.5.2008 and 25.7.2008 the opposite parties cannot be found fault with. So even if there is some infection at the place of surgery it cannot be attributed to any inaction on the part of the opposite parties. Merely because there were abscesses developed at the place of wound negligence cannot be attributed to the opposite parties 1 and 2. Therefore we are of the opinion that the complainant failed to establish that the opposite parties were negligent in performing surgery and in giving postoperative care'.
17. The Hon’ble Supreme Court held that the line of treatment adopted by a doctor usually cannot be held incorrect unless there is contemporaneous evidence brought on record. In 'C.P.Sreekumar M.S (Ortho) vs S.Ramanujam' in CIVIL APPEAL No.6168 OF 2008 decided on 1 May, 2009, it was held:
‘It is also relevant that though the respondent had sought the opinion of Dr. Ajit Yadav of the Tamil Nadu Hospitals on 30th May 1992, he produced no evidence to off.set the appellant's evidence as to why he had chosen hemiarthroplasty over internal fixation. It is qually significant that the respondent had taken the advice of several renowned doctors including Dr. Mohan Das and Dr. Nand Kumar, but none of them in their treatment notes observed adversely about the choice of treatment nor any negligence in the actual operation. In the light of the fact that there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the appellant, Dr. Sreekumar was grossly remiss in going in for hemiarthroplasty. In Jacob Mathew case (supra) it has observed as under:
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed';
21. It would, thus, be seen that the appellant's decision in choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence.’
18. The Hon’ble Supreme Court in 'Kusum Sharma Vs. Batra Hospital & Medical Research Centre' reported in (2010) 3 SCC 480 after considering the entire case law on medical negligence observed :
Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
19. In the aforementioned decision, the Apex Court framed the following principles while deciding whether the medical professional is guilty of medical negligence,
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
20. Thus, the negligence of the appellants not caring to go through the previous medial record of the patient relating to her low backache has to be considered whether it had any adverse effect on her medical status, during the stage of the operation, and post-operative period. The District Forum held that due to the appellants performing the surgery, the 1st respondent suffered the consequent problems. The District Forum concluded that there was no negligence on the part of the appellants in performing the surgery and in attending the patient during post-operative stage. The District Forum awarded the amount of Rs.5,00,000/- on the premise that the appellants conducted unwarranted surgery and the 1st respondent suffered problems relating to a needless surgery. This Commission in the aforementioned paragraphs held that the deficiency in service on the part of the appellants is limited to their failure to look into the previous medical record of the 1st respondent relating to renal calculi.
21. The medical record would not indicate any adverse effect of the renal calculi or renal problem of the 1st respondent on her medical status and the surgery performed upon her by the appellants. It is pertinent to note that the 1st respondent had not suffered from any permanent disability. However, the magnitude of negligence of the appellants has to be made basis to award compensation to the 1st respondent on the platform of suffering and hardship of the 1st respondent. Again, it should not be forgotten that the amount to be awarded as compensation should commensurate to the inconvenience caused and the claimant should not be put to unjust enrichment by the amount awarded as compensation.
22. The Hon’ble Supreme Court in 'State of Gujarath vs Shantilal Mangaldas' AIR 1969 SC 634. Held the compensation to mean'…..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in te
Please Login To View The Full Judgment!
rms of money along, the expression ‘paid’ would have been more appropriate'. 23. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In 'Charan Singh vs Healing Touch Hospital and others' 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held 'While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. 24. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge'. 25. The appellants’ failure to look into the medical record of the 1st respondent relating to her kidney problem which did not cause any consequential damage to the health of the 1st respondent , would be the basis to assess the amount to be awarded as compensation to the first appellant. As held in aforementioned paragraphs, the 1st respondent did not suffer from any permanent disability and there has been no negligence on the part of the appellants in making decision to perform surgery upon the 1st respondent or the appellants were not negligent in conducting the surgery upon the 1st respondent as also during the post-operative stage treatment. We are of the view that the amount of Rs.30,000/- would be proper and reasonable if awarded as compensation and accordingly, the amount of Rs.5,00,000/- awarded by the District Forum is liable to be reduced to Rs.30,000/-. In the result, the appeal is allowed modifying the order of the District Forum. The opposite parties are directed to pay an amount of Rs.30,000/-(Rupees thirty thousand) together with costs of Rs.5,000/-. There shall be no separate order as to costs in the appeal. Time for compliance four weeks.