Consumer Complaint No: 788/2007

Between:

Sri Pottinooru Somulu since died on 11-10-2007 his daughter and legal heir Smt.Kuppili Adilaxmi, W/o Sri Kuppli Kumar, Hindu, Female, aged 23 years , Resident of# No.58.29.53, vinodnagar, N.A.D. Post, Visakhapatnam-53009. … Complainant

A n d :

01. M/s. Kamala Nursing Home, represented by Dr.K.Demudu Babu, , M.H. H.H., FCGPLMC, Regd. No.12091 Marripalem, Main Road, Visakhapatnam-530018.

02. M/s. Kamala Medical Centre (X-ray, E. G. G., Ultra Sound Scanning & Laboratory Investigation) represented by Dr. Demudu Babu, Marripalem, Main Road, Visakhapatnam-530018.

03. Dr.Shri Vijayabhushanam, M.S (Ortho), Operating Surgeon, M/s. Kamala Nursing Home, rest –do-

04. Dr.Shri V.Ravi, M.D., (Anaesthesia), Anaesthetist, M/s.Kamala Nursing Home, rest –do-

05. Dr.Shri S.Srinivas, M.D (General), M/s. Kamala Nursing Home, rest-do-

06. Dr.Shri Venugopal, M.D.D.M., (Nephorology), M/s. Kamala Nursing Home, rest –do-

07. Dr.Shri K.Demudubabu, M.B., B.S., FCGPLMC., M/s. Kamala Nursing Home, Main Road, Marripalem, Visakhapatnam-530018.

… Opposite Parties

This case is coming on for final hearing on 24-11-2009 in the presence of Sri K.Balakrishna, Advocate for the complainant and of Sri.K.V.Rama Murty for the opposite party and having stood over till this date, the Forum delivered the following.

: O R D E R :

(As per the Honourable President on behalf of the Bench)

1. (i) The complaint averments in brief are the complainant’s father P.Somulu, sustained fracture to his right hip and admitted in Kamala Nursing Home (Op1) on 13-08-2007. It has got Kamala Medical Centre (Op2) and both of them are owned and managed by Dr.Demudu (Op7). On the very day of admission, catena of both clinical , bio-chemical, serological and other formal and informal diagnostic investigations were done. Dr.Vijayabhushanam, Orthopedic Surgeon (Op7) examined Somulu and noted the findings of the investigations and the case has been posted for surgery on 16-08-2007. Dr.V.Ravi (Op4) was an Anesthetist. The surgery was conducted, though alternative treatment was available, without following the established procedure and examining him in a casual and routine manner. Though the complainant’s father was discharged on 29-08-2007, he was not relieved entirely from fever, cough and swelling in his both legs and he was unable to walk. So, on 30-08-2007 and two or three days there after Op7 was consulted, who got carried blood and urine tests and he was ultimately again admitted in (Op1) nursing home and MRI brain scan was also done, besides other investigations. He was there in the hospital till wee hours of 8/9 September 2007 and ultimately referred to Seven Hills Hospital. The complainant’s father was admitted in Seven Hills Hospital on 10-09-2007, where some more investigations, including HIV tests were done and the HIV test shown to be “positive”. There the post operative problems of the complainant’s father were informed to be due to HIV and further pointed out that in such condition, the surgery could not have been done at all.

(ii) The complainant later came to know that Op2 laboratory is being managed by technically incompetent and ill trained persons. The complainant’s father was ultimately shifted to KGH, Visakhapatnam and there expired on 11-10-2007. The complainant got issued notice on 27-09-2007 itself, to all the opposite parties, while her father was in Seven Hills Hospital. Since the surgery was done without following the established procedure and absolutely failed to take proper care and caution, either pre-operative or post operative stages it resulted in premature death of complainant’s father and this is nothing but actionable medical negligence on the part of the opposite parties. The surgery was done under the alleged ‘informed consent’ and paternalism played a permanent role all along holding pecuniary gains as the base, disregarding the patient’s personality; physical and mental state vis.a.vis his financial position. Hence this complaint for payment of compensation of Rs.5,00,000/- (Rupees five lakhs only) against the opposite parties for their deficiency in service, reimbursement of medical expenditure of Rs.1.4 lakhs and also another 50,000/- (Rupees fiftythousand only) as compensation towards loss of parental care, love and affection besides Rs.10,000/- as costs.

2.(i) Ops 1,2 and 7 filed a counter pleading that the patient was admitted for intra capsular fracture of neck of right femur. After admission, he was given skin traction V.V fluids and necessary medicines and made him comfortable and basic investigations like urine, blood, E.C.G and X-ray tests were got done. The Orthopedic Surgeon, the 3rd opposite party, examined the patient and confirmed that the patient was suffering from IC#NF (Terms Cervical). Op3 after going through the investigations reports, which are within the normal limits, advised to take medical opinion regarding fitness of the patient for Austin Moore’s prothesis surgery. Op5, Professor of medicine, examined and found the patient to be fit. The Cardiologist opinion was also taken and thereafter only the surgery was done on 16-08-2007 by Op3 and the post operative condition was good. By appearance and medical examination, Somulu was found fit for surgery and reasonable due care was exercised, as per the contemporary medical practices in vogue.

(ii) After the operation the patient recovered well. Minor complications arose, Dr.Venugopal, a specialist in renal diseases was also called. Only after wound was healed well, the patient was discharged and by that time he was able to walk its support. However the patient was again brought some days thereafter and found weak and aphasic. The Neuro physician, Dr.Kishorebabu of Care hospital, was summoned who opined that the patient was suffering from CVA and weakness on right side. Again chest X-ray and CT scan were taken and chest X-ray revealed respiratory problem. Then Dr.Bhushan, Chest Specialist, was summoned, who identified that the patient was suffering from left plural effusion and some infiltration in the both lower lobes and COPD and advised treatment. The patient was having breathing disturbance. In such situation, opposite party, advised patient to be shifted to a medical centre, with higher and advanced facilities and ultimately referred to Seven Hills Hospital on 8-09-2007. For the second time, the patient was treated only for 1 ½ days thus post operative care was taken by the opposite parties 1 and 7.

(iii) Op1 is a 20 bedded hospital, well maintained by qualified doctors and equipped with twin operation theatre, (X-ray, laboratory, etc. Similarly Op2 medical centre is also well equipped to cover the needs of Op1 and well maintained by qualified technicians, including Gopinath Choudari, who had earlier worked in reputed organizations and he was in the same field from the beginning and followed standard procedures and standard materials. He conducted HIV test by the kit manufactured by famous Bio-tech company and similar kits of same make are being used by him, without any complaint. It is a screening test only and only when Elisa test was found Positive, confirmation test of Western Blot will be undertaken.Before conducting the surgery, HIV test was also conducted in Op2 laboratory with HIV/TRI Dot Kit and the test yielded negative, the same type of kits were being used by Op2 in all cases without any complaint. In this case HIV screening test yielded a negative report. The fact that subsequently when similar test was conducted in Seven Hills hospital the test yielded ‘positive’ would indicate that the patient was in ‘window period’ of HIV, which is 3-12 weeks. The period following the entry of virus into the body and appearance of detectable anti bodies in the blood with available kits is called the ‘window period’. Thus it could have been a case of complainant’s father contracting HIV before he was admitted in Op1 nursing home and it was dormant but subsequently it surfaced or it could have been the case of patient contacting HIV, due to transfusion of blood, which was collected from the Blood Bank, during incubation of HIV of the donor. It is naïve to contend that the operation cannot be performed on the HIV patient. On the contrary the doctors and supporting staff were apprehensive to conduct an operation on HIV patient, even for profit, due to fear of contracting it by them. Thus the problems of the patient set out in the complaint are not complications due to the surgery conducted on the patient. Thus the complaint is vexatious to extract money from Ops, although the doctors treated the patients with good faith. The compensation claimed is highly excessive and exorbitant. Hence the complaint is dismissed as devoid of merits with exemplary costs.

3. Op3 filed a counter pleading that he performed surgery on Somulu after taking necessary precautions and found fit by concerned specialists. The surgery was mandatory to make the patient ambulatory in this type of fracture, unlike other fractures of leg, which can be managed non operatively also. He has done everything ethical and cautiously without any medical negligence. The HIV positivety is not a contra indication for surgery and surgeon has to perform the suitablesurgery after taking the required precautions. Thus there is no deficiency in service on his part and complaint is to be dismissed with exemplary costs.

4. Op4 filed a counter pleading after a cardiologist physicians opinion, the case was prepared and taken for surgery under epidural anesthesia and risk was explained to the patients attendance prior to surgery, which went on smoothly and the patient vitals were continuously monitored and maintained well. Surgery was uneventful and the patient recovered from anesthesia and was shifted from the operation theatre. Hence there is no deficiency in service on the part of this opposite party and hence the complaint has to be dismissed against him with exemplary costs.

5. The Op5 General Physician filed a counter on similar lines pleading that he treated and examined the patient prior to operation as to his fitness and during post operative period also for urine problem and suggested proper treatment.

6. Similarly Op6 filed a counter that he examined the patient at the request of Op7, during post operative period, when he was suffering from pre renal acute renal failure and corrected by giving I V fluids and he was also treated adequately for low sodium and further complications. He was advised to be seen by a Nephrologist and ultimately pleaded for dismissal of the complaint against him.

7. At the time of enquiry, the complainant, apart from filing her own affidavit, in support of her contentions examined PW-1 and PW-3 doctors at Seven Hills hospital and PW-2 the Doctor at KGH, Visakhapatnam. Apart from that, the complaint also served interrogatories to opposite parties 7 and 3, for which they gave replies. The complainant in all marked Ex.A1 to Ex.A8. On the other hand the affidavits of opposite parties 3-7 were filed and of them, Op3 was cross examined by on behalf of the opposite parties Ex.B1 to Ex.B10 are marked. Both the counsels were heard who reiterated their respective contentions and Op5 even filed written arguments supplementing their oral submissions.

8. The counsel for the complainant vehemently urged that without taking into consideration the advanced age of the complainant’s father, the opposite parties resorted to radical surgery without following required procedure and conducting proper tests. He urged that inspite of the fact that the alternative treatment is available, the opposite parties resorted to this radical surgery. He further urged that there is no proper consent, before undertaking the surgery, which amounted to deficiency in service. Lastly he contended that the Op2 ,the diagnostic laboratory attached to the Op1 nursing home, also belonged to the Op7, was being run by incompetent and untrained people, which resulted in a wrong report that the complainant’s father does not have HIV and based on it Op3, the Orthopedic surgeon proceeded with the surgery which led to complications ultimately proved to be fatal. Thus he contended that these acts of the opposite parties amounted to deficiency in service and the complainant is entitled for the reliefs claimed against them. He even cited certain authorities which would be considered at the appropriate stage.

9. On the other hand it is the contention of the counsel for opposite parties that considering the nature of complaint, the opposite parties, after observing the necessary procedure and getting the required tests conducted and after being satisfied about the fitness of the patient to undergo surgery only, it was proceeded with, by Op3 and that was the only treatment for that ailment. He contended that before the surgery was undertaken, the complainant as well as her father were fully informed about the necessity of surgery, as part of treatment and the complainant herself, who was attending on her father, gave the consent on behalf of her father and thus there is valid consent. With regard to the fact that the patient was found to be having HIV at a later point of time, he contended that the screening test undertaken at Op2 laboratory had shown it to be ‘negative’ and the technicians used the usual kit for such tests that are being used in other cases also and he was a qualified and a trained technician and report given by him cannot be wrong. He urged that in view of the fact that a later point of time, the patient was found to be having HIV, it must be a case that the patient had HIV even by the time he was admitted in Op1 nursing home, the disease in “window period” which could be generally 3-12 weeks and it could not be detected. Alternatively, he must have contracted it due to blood transfusion, done after the surgery, taking the blood from the Blood Bank and the donor himself might be in “window period”. Even otherwise simply because a person happened to be HIV patient he cannot be ruled out from surgery. The learned counsel vehemently urged that as surgery was conducted by Op3 after following the standard procedure and post operative period was also found to be without any complication and he was even discharged from the hospital there is absolutely no deficiency in service on their part.

10. The undisputed facts are the complainant’s father Somulu, was admitted in Op1 nursing home on 13-08-2007 for fracture of his right hip Op2 diagnostic centre attached to the nursing home. Both Op1 and Op2 belonged to Op7 who is a consulting physician there. Necessary clinical and serological tests were conducted in Op2 diagnostic centre which include screening test for HIV has found to be negative there upon the fitness of the patient was certified by Op5, the general physician. Ultimately Op3, the Orthopedic Surgeon conducted the surgery on 16-08-2007 and Op4 was anesthetist. Post Operative period obviously did not have any complication and when there was urinary problem. Op6, a nephrologist, was summoned the patient was ultimately discharged on 29-08-2007.

11. However after discharge there was some problem and he was re-admitted in the nursing home as he was suffering from CVA and weakness in right side. So Dr.Kishorebabu of Care Hospital, Dr.Vijayabhushanam, Chest Specialist was summoned, but ultimately he was referred to Seven Hills Hospital on 9-9-2007, where he was admitted on that day. After admission at Seven Hills Hospital, as usual, the routine tests were again got done and this time HIV test had shown to be positive. So further confirmation tests were also done there itself and it was found that evidently he was having HIV infection and immunity was very low. There was further complications for which treatment was given and he was discharged from Seven Hills Hospital on 22-09-2007, on request. Ultimately the patient died on 11-10-2007 at KGH. There is not much dispute, the death was due to the Multi Organ System failure, evidently due to HIV. Even while the patient was in Seven Hills Hospital and undergoing treatment, the patient got issued a legal notice ExA7 on 27-09-2007, the alleging that Op2 laboratory was not managed by technically qualified persons and though her father was not fit enough to undergo surgery, it was done by Op3. The very fact that while HIV test conducted on Op2 laboratory had shown negative, the same test conducted Seven Hills Hospital had shown to be positive, would indicate the incompetence and negligence on the part of Op2 and Op7. Naturally opposite parties gave a reply Ex.A8 denying the accusations.

12. Before going to the merits of contentions of either side, it is to be noted, in our view, the complaint against anesthetist. Op4, general physician - Op5 and nephrologists - Op6 cannot be sustained. Undisputedly the patient recovered well from anesthesia and the post operative period was uneventful and the role of the anesthetist ceases soon after that period. Similarly opposite party nephrologists was summoned due to post operative renal problem, which he corrected successfully. With regard to Op5 the general physician only certified as to the fitness of the complainant’s father for surgery, based on the investigation report placed before him. The surgery was uneventful and without any post operative complaints. Such being the case, Op5 also cannot made liable . No negligence can be attributed to him. Thus Op4 to Op6 cannot be made liable, even if actionable claim is proved against the other opposite parties.

13. In view of the contentions by either side, as stated supra, the following point would arise for determination:

Whether the surgery conducted upon the complainant’s father was without taking proper and necessary investigations, that too without proper consent and thus there is deficiency in service on the part of the opposite parties 1,2,3 and 7.

14. As already noticed above, in view of the fact that the screening test done at Op2 laboratory for HIV prior to operation has shown to be negative, but almost one month thereafter, at Seven Hills Hospital, when similar test was conducted, it had shown to be positive, which ultimately led to the complications culminating in the death of the complainant’s father, the complainant took up a strong plea that the Op2 laboratory is not properly equipped and not manned by competent persons and that is why an incorrect finding that he was ‘HIV negative’ was given in that lab. The learned counsel even took up a stand that the surgery ought not to have been done at all, as the complainant was a HIV patient. With regard to the competence of technical person in the D2 laboratory, it is claimed that one Gopinath Choudari was the Technician in the laboratory. Ex.B7 and ExB8 are the certificate issued by the institute of Medical Technology and Association of Medical Technologists as to the qualification and training acquired by Gopinath Choudari. Ex.B9 and Ex.B10 the two certificates issued by two different diagnostic centres, as to the competence of Gopinath Choudari, as a Lab Technician. The fact that he was the technician at the relevant period could not be seriously challenged by the complainant. This would show that the technician manning Op2 laboratory was a qualified person, having vast experience.

Apart from the competency of this technician, it is evident that the screening tests for HIV will be conducted by kits available in the market and one such kit was used in our case also. It is quite evident that the test was conducted in a normal manner using the kits generally meant for it.

15. From the arguments of the counsel for opposite party and the literature relied by him, namely, IMA, AAKN SI Post Graduate certificate course in Reproductive and Child Health would show that the anti bodies appear in blood within 2-3 weeks, after infection but usually become detectable after 3-12 weeks . This period following the entry of HIV into body and the detectable levels of anti bodies, with the available test kits, is called “window period”. During this period, the individual though infected, will be non-reactive with the anti body detection tests. It is to be noted that right from the reply notice stage, it is the consistent plea of the opposite party that the patient must be in window period or the donor of the blood, the transfusion of which was given after surgery, must be in window period and so could not be detected. The complainant, could not challenge this scientific fact of presence of ‘window period’ for this disease, preventing immediate detection. Thus when screening test was done in general manner and as it yielded negative, naturally the confirmation test was not done in this case. Even if done, while it was during “window period” it may not be detectable. Obviously, the patient was in “window period” of the infection at the time of admission in the hospital itself or must have acquired it at the time of blood transfusion, undisputedly done immediately after surgery, with blood of a donor, who must be in “window period” stage. Thus it is quite evident that the opposite parties 3 and 7 do not have any knowledge of existence of HIV, if any, in the patient at the time of surgery and such being the case, in the absence of any other serious lapses that could be shown, the proceeding with surgery was evidently done after observing the necessary investigations. It is unfortunate that the complainant’s father, because of the presence of HIV, developed serious complications and ultimately his death was due to multi-organ failure. But simply because the unfortunate turn of events, after the surgery, no negligence could be attributed to opposite parties 2,3 and 7.

16. A feeble attempt was made to contend that Op3 proceeded with radical surgery, ignoring the age and general condition of the patient, with ulterior motives. But apart from the evidence of Op3 himself to that

effect, it is evident that this surgery was the only treatment for this cases of fracture neck of the femur in displayed condition of the patient more than 60 years old, Hemi Arthroplasty is the only treatment for the prosthetic replacement as can be seen from page 116 of the Text book on Essential Orthopedics relied upon by the counsel for the opposite party. Thus we do not find any force in the contention of the complaint’s counsel that the radical surgery ought not to have been conducted at all. On the other hand it is shown to be the only treatment that was available for such type of ailment that was conducted by Op3, the orthopedic surgeon. As held by National Commission in Rishipal Singh and others V. Alighar Muslim University, 2007 ALT page 6 NC the burden lies on the complainant to prove medical negligence by showing what should not have been done as was done or what should have been done was not done and the complainant miserably failed on this ground.

17. Now coming into the last ground of deficiency pleaded against the opposite parties, namely, invalid consent for surgery, undisputedly the patient was in fit condition both physically and mentally, by that time the consent was obtained, from the complainant, the daughter of the patient, this ‘informed consent’ obtained from complainant the daughter of the patient was pleaded to be invalid consent. The learned counsel placed reliance upon a decision of the Apex Court in Samira Kohli Vs.Prabha Manchanda and another, AIR 2008 Supreme Court page No.1385, wherein it was held that “the consent so obtained from the patient should be real and valid, which means that the patient should have capacity and competence to give the consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.” It further held that “the doctor should disclose (a) the nature and procedure of the treatment and its purpose, benefits and efforts; (b) alternatives if any, available (c) an outline of the substantial risk; and (d) adverse consequences of refusing treatment.” The facts of that case would show, while the patient was admitted for diagnostic and operative laparoscopy, the surgeon during operation, took the consent of the mother of the patient and performed hysterectomy and also salpingo oophorectomy i.e (removal of ovaries and fallopian tubes). Considering the fact that there was no urgency to conduct such surgery while the patient was under anesthesia for diagnostic surgery only, it was held that it is not valid consent and the doctors were held liable to pay compensation.

18. Similarly, there is another decision of National Commission in Jogindar Singh Vs.Dr.Rajiv Kumar Majundar, IV (2009) CPJ 9 (NC), wherein while the deceased patient was an adult and in a condition to give consent, the second operation obtaining consent from husband, it was held to be an invalid consent and a deficiency in service. It has been observed when there is no imminent threat to life of the patient, elective surgery could have been postponed.

19. The counsel for opposite party on the other hand relied upon a decision in Snehalatha Das Vs. Appolo Gleneales Hospital and another III (2009) CPJ 340, wherein the consent obtained from the brother of the patient was accepted in holding that there was no negligence on the part of the doctors. But in view of the earlier Apex Court’s decision in Sameer Kohli case, cited above and relied upon by the counsel for complainant, in our view this decision of the State Commission of West Bengal, cannot have any binding nature on this Forum.

20. From the undisputed facts that the consent was obtained from the daughter of the patient, though he was mentally and physically was in a fit condition, in the light of the decision of the Apex Court in Sameer Kohli’s case, it has to be necessary held that there is no valid consent for the surgery conducted upon complainant’s father, which is a deficiency in service, on the part of the opposite parties 1,3 and 7.

21. Thus the main grievance of the complainant that on an incorrect or false diagnostic report obtained from Op2, surgery was proceeded with, inspite of the fact that the patient was a HIV patient and consequently there is deficiency in service on the part of the laboratory - Op2 and doctors Op3 and Op7 having found to be unsubstantiated, the only ground that could be successfully established by the complainant is that there was no valid consent for proceeding with surgery, which amounted to deficiency in service.

22. No doubt, it is quite evident that the subsequent complications, which proved to be fatal was nothing but due to the fact that the complainant’s father had HIV. But as already held, when this dreaded disease of deficiency in immunity was acquired by the complainant’s father could not be established by the complainant. The possibility that he was already having the disease but in “window period” even by the date of admission in the hospital or he must have acquired it at the time of transfusion of blood obtained from Blood Bank, immediately after the operation and the possibility of the donor of such a blood, being in a “window period” cannot be ruled out. At any rate, it is quite clear that at the time of proceeding with surgery by Op3, they had no knowledge of the patient being HIV infected person. As a matter of fact acquiring this disease, with blood transfusion is more probable rather than the patient having it, even by that time of joining the hospital of Op1. Considering these circumstances and in the light of the legal precedents cited above and the nature of deficiency proved, we are of the view that awarding compensation of Rs.25,000/- (Rupees twenty five thousand only) for this technical deficiency in service against Op1, 3 and 7 would be just and proper. Accordingly this point is answered.

23. In the result, the complaint is partly allowed directing opposite parties 1,3 and 7 to pay a compensation of Rs.25,000/- (Rupees twenty five thousand only) to the complainant within 30 days, failing which it should be paid with 9% interest from the date of order to date of payment. In the circumstances of the case, each party to bear their respective costs. Advocate fee is Rs.2,500/- (Rupees two thousand and five hundred only).