Muppavarapu Lakshmi Narayana,

S/o. Kotaiah,

R/o. Srungarapram,

Bapatla, Guntur District. … Complainant


1. Dr.K.Ramalingeswara Rao, M.S.FAGE,

Medical Practioner,

Sri Hanuman Hopital, Opp. Leela Mahal,

Guntur.

2. Dr.Karumanchi Uma Maheswara Rao,

S/o. Sambasiva Rao,

Orthopedic Surgeon,

R/o. Ashok Nagar, Guntur.

Sai Priya Hospital, Sambasivapet, Guntur.

3. Dr.Vutukuri Venkata Rama Kumar,

S/o. Subba Rao,

Diabetologist,

R/o. Kothapet, Guntur. … Opposite parties

O R D E R

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay sum of Rs.3,50,000/- incurred towards medical expenses, Rs.50,000/- towards mental agony, loss of consortium and wife’s support, Rs.1000/- towards cost of litigation on the ground of medical negligence/deficiency of service allegedly committed by them.

The brief facts of the case are that:

One Muppavarapu Sarojini was the wife of complainant. She was admitted as inpatient in the hospital of 1st opposite party on 09-05-03 for the treatment of Diabetic foot. Prior to her admission in the hospital, she was hale and healthy. The 1st opposite party conducted all verities of tests and after diagnosis opted for surgical treatment.

The patient was firstly operated on her left leg toe (“Botanivrelu”). Subsequently, the opposite parties have opted for amputation of left leg and thereafter the patient was discharged. Due to amputation and surgical treatment, the patient was unable to with stand and she died because of negligence of opposite parties in diagnosing the disease and opting for surgical treatment without analyzing the anatomy of the patient and her condition to bear surgical treatment. As the opposite parties have conducted the operation that led to her death. Thus there is deficiency of service on their part.

The treatment costs about Rs.3,50,000/- including the fees of opposite parties and team of other doctors. Because of negligent advise of the opposite parties and indifferences in treatment, the complainant has not only lost his wife but also incurred huge expenditure by borrowing the amounts from others. Therefore, the complainant herein is to be compensated for mental agony which he suffered since he lost his wife. The opposite parties have treated the patient for more than one month during pre surgical period. The complainant got issued legal notice to the opposite parties demanding the aforesaid amounts, but they have not come forward for payment of the same. Hence, the complaint.

The 1st opposite party filed his version in detail in the following manner:

He has denied all the allegations made in the complaint and called upon the complainant to strict proof of the same. The complainant has weaved a cock and bull story and filed this complaint. The complainant is guilty of suppretio vari and suggestio falsie. He has made very careless and false allegations against the opposite party. The complainant has failed to submit substantial material to prove medical negligence and deficiency of service. The complaint is nothing but an evil design to blackmail the opposite parties. The opposite parties have maintained a detailed case sheet about the treatment given to the patient, which negate the contentions of complainant.

Further it is submitted that the complainant wife late Smt.Muppavarapu Sarojini aged about 60 years, was a known diabetic for the last so many years. About 4 years ago she had approached this opposite party along with her husband for treatment and having satisfied with the same and improvement in her health she became a regular patient to this opposite party. She was suffering from diabetic foot and used to become better with the treatment given by this opposite party. She has continued her treatment with them during the last 4 years.

That on 09-05-2003, the said Sarojini along with complainant and other relatives came to the hospital of opposite party with badly infected diabetic foot (left) with severe sepsis and uncontrolled diabetes. As per the information given by her, she had history of Thorn prick for her left big toe and was under treatment of local doctor for a quite length of time. But it could not be cured. This opposite party having noticed the seriousness in the condition of said patient has explained everything about the severity, the nature of expected treatment, consequences thereto and also the approximate expenditure involved. The 1st opposite party after explaining the above aspects and treatment to the patient, the complainant and other relatives left the matter for their decision and he also advised either to admit her in his hospital or to approach at higher center.

But they requested the opposite party to start treatment leaving everything to their fate. So, the opposite party has admitted the patient in the hospital and started treatment after thorough examination, investigation and after local removal of all the dead and devitalized tissues as per advanced medical sciences and applied with higher antibiotics to control the infection and pain insulin injection for controlling the diabetes and vitamins to improve the general condition of the patient.

Inspite of good diagnosis and best treatment and higher drugs this opposite party could not find any improvement in the health as she was admitted in very bad condition in the hospital. In consultation with the complainant and others, this opposite party has called for the Diabetalagist and Orthopedic Surgeon and Anesthetist and they have also examined the patient and gone through the history and they also explained the seriousness in the condition of patient.

At that juncture also this opposite party and other doctors have also suggested that the patient can be taken to higher center for second opinion and if necessary for treatment. But all of them including the patient have expressed their confidence and also prepared to take all the bad in consequences of the proposed treatment. On the suggestion of this opposite party, the complainant took 3 or 4 days time for informing about their final decision after consultation with their family doctors and also their men at higher centers. Ultimately they have decided to continue their treatment in the hospital of opposite party.

The opposite party and the team of doctors referred above have unanimously opined that it may be possible to control the infection by conducting below knee amputation and if not, the said infection will spread like anything to the other parts of the body in short time and informed the same to the complainant and they gave their full consent. Therefore, the opposite party with the team of doctors proceeded with treatment and conducted the below knee operation to the patient.

The opposite party has continued with higher antibiotics, blood transfusion and daily dressing in the light of clinical reports and as per advanced medical sciences and thereby could control the diabetic status of the patient. But in view of the severity of diabetic status and low resistance of the patient, the infection could not be controlled and her condition was being explained regularly to the complainant and other relatives. Having been satisfied with the sincerity, honesty and hard work of this opposite party in treating the patient, they did not prepare to go for higher center.

On 10-07-2003, surprisingly the complainant has asked the opposite party to discharge the patient stating that they will take her either to home or to any higher center and this opposite party has advised the complainant not to take the patient to home, but necessarily take the patient to any other higher center or hospital and continue the treatment. The complainant has accepted the same.

In view of the long relationship between the complainant and this opposite party, he made payment of only Rs.4,500/- towards the part payment of room rent, nursing charges etc. promising to pay the fees of this opposite party and his team of doctor within a short time, this opposite party on humanitarian grounds has obliged the request of complainant and discharged the patient. Thereafter, neither the complainant nor any of his relatives were returned to the hospital. It is false to allege that the complainant has incurred expenditure to the tune of Rs.3,50,000/-.

About eleven months ago, the complainant along with two others have approached this opposite party and expressed repentance for discharging patient from the hospital and taking her to home and treating her in lower centers instead of higher centers.

The complainant made a request on this opposite party to issue a medical certificate with false dates and other entries, but the opposite party refused to oblige his request. However he is supplied photostat copy of case sheet of the patient apart from other information. Even at that time also, the complainant has not paid the fees of doctors. Therefore, the contents of complaint are all tissues of falsehood, based on the concoctions, fabrications, exaggerations, imaginations of the complainant. Absolutely, there is no negligence on the part of opposite party in treating the patient.

The complainant has sent a notice dt.05-06-04 and filed false complaint as 1st opposite party refused to give false certificate to misuse the same for submitting in the office of LIC of India and at other offices. The 1st opposite party has got issued a registered reply notice dt.15-06-04 contending all the allegations made in the notice of the complainant. Therefore, it is prayed to dismiss the complaint.

Version of OP2 is as follows:

He denied all the allegations made in the complaint as incorrect. According to him he has visited the nursing home of 1st opposite party on request on 13-06-2003 to see the complainant namely Mrs.Sarojini and regarding management of foot problem. When he saw the patient, he came to know that she was under treatment and care of 1st opposite party since 09-05-03. After examination of patient, this opposite party noticed that there is severe infection on her left foot and she was on daily dressing, higher antibiotics and her sugar level controlled with injection insulin as advised by the 3rd opposite party.

This opposite party advised colour Doppler study of arterial system of left lower limb to know the status of blood supply of left lower limb. On 14-06-03 colour Doppler study was done and it showed mild peripheral vascular disease. As infection is severe and there is mild peripheral vascular disease this opposite party together with 1st opposite party discussed and advised below knee amputation for the left foot problem, and as per medical history the only treatment for diabetic foot with infection and peripheral vascular disease is amputation. The seriousness of the disease was explained to the patient’s husband and also to her son and asked them to give consent for further management.

On 18-06-03, after taking all necessary precautions, the left below knee amputation was performed on the patient and the 2nd opposite party assisted the 1st opposite party in the procedure. Intra operatively, blood transfusions were given and post operatively the patient was put on higher antibiotics and her blood sugar levels controlled with the insulin. In the post operative period this opposite party visited the patient 4 or 5 times and noted persistence higher infection and advised them to go for a further amputation or to take the patient to higher centers.

This opposite party came to know from the 1st opposite party that the patient was discharged from the hospital on 10-07-03 and while giving affidavit only, this opposite party came to know from the 1st opposite party that the patient died. The complainant did not chose to make any mention for the reasons best known to him either in the notice or in the complaint or in the chief affidavit, the particulars of death of his wife. The cause of death of his wife is not at all due to operation and is due to uncontrolled infection which may be led to septicemia, which is a life threatening complication. Secondly diabetes mellitus patients are more prone for myocardial infraction (heart attacks). The patient’s death is not due to amputation for the leg and could be due to septicemia or cardiac problem.

This opposite party being qualified experienced orthopedic surgeon discharged his duties diligently and there is no deficiency of service on the part of this opposite party. The complainant did not make any allegation against this opposite party. As the 2nd opposite party gave affidavit in support of 1st opposite party, the complainant unnecessarily impleaded him in the above referred proceedings for wrongful gain. Therefore, it is prayed to dismiss the complaint in the interest of justice.

Version of OP3 is as follows:

He denied all the allegations made in the complaint. He has been practicing as diabetologist for the past 11 years. It is also submitted that he is medical graduate from Guntur Medical College and did his post graduation from the University of Zagreb and got trained in the departments of diabetology of Apollo Hospitals, Chennai and other Government Hospitals. He has also written articles about diabetes which was published in international journals.

According to him, the patient by name Sarojini is known diabetic patient since more than 10 years and she was admitted in the 1st opposite party hospital complaining of foot infection to left big toe. This opposite party was giving insulin according to her blood sugars. During her stay in hospital she was monitored regularly and treated accordingly. The patient was put with insulin, higher antibiotics, blood transfusion, daily dressing to wound under continuous medical care.

The diabetes is such a disease where the blood sugars should be monitored frequently for control with drugs. Even though patient’s sugar levels were controlled, changes in the nerves and blood vessels will occur in long standing diabetic patients. Due to peripheral neuropathy and angiopathy diabetic patients will not have any pain after injury, so that ulcers will develop.

If ulcers present i.e., diabetic foot, infections will be developed. In this case, this opposite party followed the standard treatment “Regimen”. The patient was on insulin till the date of her discharge i.e., on 10-07-03. He did not conduct any operation on her. As this opposite party gave his affidavit in support of 1st opposite party, the complainant unnecessarily impleaded him to the proceedings. Therefore, it is prayed to dismiss the complaint.

The complainant has filed his affidavit reiterating the facts as alleged in this complaint. Further he got marked documents under Ex.A1 to A18. He has also procured the affidavit of one Dr.Rammohana Rao, resident of Bapatla in support of his claim. All the 3 opposite parties have also submitted their own affidavits explaining the treatment and procedure followed in the management of diabetic foot of the wife of complainant and care taken by them during her hospitalization till the date of discharge.

As the case sheet of the patient maintained in the hospital since copy of the same has been supplied to the complainant apart from other papers which are on record wide Ex.A1 to A15, they did not choose to file any other document. The complainant originally filed this complaint against the 1st opposite party alone. As opposite parties 2 and 3 were involved in the treatment of deceased Sarojini and filed their affidavits in support of 1st opposite party, the complainant also impleaded them as opposite parties 2 and 3. Therefore, they have also filed their versions as stated so far.

Now the points for determination are that

1. Whether the opposite parties 1 to 3 have committed medical negligence/professional negligence in conducting amputation of left leg of the deceased M.Sarojini and are responsible for her death due to the deficiency of service?

2. Whether the complainant is entitled for refund of medical expenses and compensation from the opposite parties as prayed for?

3. To what relief?

POINT No.1

The deceased, wife of the complainant aged about 60 years was suffering from diabetic foot as on the date of her admission in the hospital of 1st opposite party and even prior to that period she was under treatment for the last 4 years with the 1st opposite party.

The detailed version of 1st opposite party explains the history of disease including the nature of treatment followed in her case till she was admitted on 09-05-03. As on the date of her admission she was badly infected with diabetic foot (left) with severe sepsis. Originally as per the information furnished by the wife of complainant, she had history of Thorn prick to her left big toe and was under treatment of a local doctor for a quite length of time, but it could not be cured. At that juncture she was brought to the hospital of 1st opposite party by the complainant and other relatives.

The case sheet reflects the nature of treatment followed and various tests conducted on her and the drugs used as discussed by the opposite parties in their version as well as affidavits. This is evident from Ex.A8 to A15. Ex.A1 is the Ultra Sonography Report dt.06-06-03 of liver, gall bladder, Kidneys, Uterus and Ovaries. The impression on the report reads as follows:

“Mild hepatomegaly with minimal fatty

infiltrations in the liver.

- Retention of urine with PVR of 350 ml

due to ? neurogenic bladder.

- Both kidneys are normal in size & texture

with normal renal cortex.”

Ex.A2 is the report of pus for culture & sensitivity. Ex.A3 is the report dt.14-06-03 in respect of Color Doppler Imaging of left lower limb arterial system. The impression on the report reads as follows:

“ Mild atheromatous disease of left lower limb arteries with

no evidence of hemodynamically significant stenosis”

Ex.A4 is the report dt.11-07-03 of pus for culture & sensitivity. Ex.A5 is the same report dt.19-06-03. Ex.A6 is the medical examination dt.06-06-03. It is noted in that, she was suffering from vomiting for last 6 days. There was fever/chills/SOB/ palpitation/edema of feet/puffyness/appetite/constipation/urine out put (N).

She was prescribed some medicines by Dr.YVS Prabhakar, Physician and Diabetologist. Ex.A7 contains bunch of medical prescriptions till her discharge on 10-07-03. The 1st opposite party with the team of other doctors i.e., opposite parties 2 and 3 and anesthetist discussed the case history of the patient and after taking all necessary precautions amputation was performed on her on 18-06-03. As per the affidavit of 2nd opposite party who is an Orthopedician conducted this operation along with opposite parties 1 and 3. He did his post graduation in Orthopedics (MS) from Kasturiba Medical College, Manipal in the year 1989.

He worked as Assistant Professor in the department of Orthopedics in the same college till 1991. Later he started practicing in Guntur in his own clinic known as Sai Priya Hospitals, Guntur. He visited the hospital of 1st opposite party and examined the patient on 13-06-03 and on 14-06-03 and got conducted Colour Doppler test on her.

The complainant rely upon the affidavit of one Ch.Rama Mohana Rao in attributing the negligence to opposite parties. The affidavit of Dr.Ch.Rama Mohana Rao reads that he knew the wife of complainant by name Sarojini and claims to have treated her before 09-05-03 for the ailment of diabetes at his hospital at Bapatla. He said to have gone through the case sheet of deceased Sarojini who treated at the hospital of 1st opposite party at Guntur.

The deceased Sarojini could not withstand for the amputation and surgical treatment of the opposite party in view of anatomy of the patient and her condition to bear with surgical treatment. As such the opposite party would not have opted for amputation and surgical treatment to M.Sarojini. After she came over to Bapatla from the opposite party’s hospital, Guntur he has seen her and her condition was very bad and subsequently leads to her death due to amputation and unwarranted surgery.

This affidavit alone is the main strength and of the material importance to the complainant to substantiate his claim against the opposite parties. On filing this affidavit, the opposite parties having seen the same, they served a questionnaire on the doctor (PW2), who has answered the same. Both the question and answers reads as follows:

1. In which Medical College, you have completed your MBBS and when? Have you filed any document in respect of your qualifications into court?

Answer: I completed my MBBS in Guntur Medical College, Guntur in the year 1992 and I filed my relevant certificates into court.

2. In which specially you have done Post Graduation ie., MD and

from which University, which medical college and when? Have

you filed any document in respect of your qualifications into

court?

Answer: I have done my Post Graduation MD in Veneriology in NTR

Health University, Vijayawada

3. Since how long you are treating Diabetes mellitus patients?.

Answer: Since 10 years I have been practicing in General Practice.

4. How much experience you have been in treating Diabetic Foot?

Answer: Not particularly in diabetic foot, but occasionally in

General Practice, I used to treat diabetic patients also.

5. How many Amputations of TOES, how many amputation of

below Knee, how many amputation of above Knee, how many

cases of hind quarter amputations, you have done?

Answer: About ten to fifteen amputations of TOES, No below

Knee, No above Knee.

6. Your experience in treating diabetic foot management before

and after Amputations of Toes and Leg with extensive slough?

Answer: Occasionally in General Practice.


7. Your experience in Diabetic Foot with sepsis?


Answer: My experience in diabetic foot sepsis is five to ten.

8. How many cases you have treated in diabetic foot with associated diseases?


Answer: I do not remember exactly in how many cases.

9. With MBBS and MD qualifications, are you eligible to comment on Diabetic Foot Management and its complications and indications for amputation.

Answer: With my experiences as General Practitioner, with my above said educational qualifications I am eligible and entitled to comment upon diabetic foot management.

10. You have mentioned the cause of death is unwarranted surgery. What treatment you would have offer except amputation for Diabetic foot which is highly infected with extensive slough and continuous Pus discharge?

Answer: In such toxic conditions monitoring of blood glucose level and antibiotics is good enough rather than amputation.

11. Do you know the following references:

(a)The Diabetic Foot, Medical and Surgical Management by

Aristidis Veves MD., B.Sc.,

John M.Givrini.D.P.M.

Frank W.Logerfo.M.D.,

2002 Humano Press, United States of America.

First Indian Reprint. 2003.

Page No.341: The Patients with any form of lower extremity amputations must be considered at high risk for further ulceration.

Page No.51: Perioperative mortality:

Bradly and Ful Ford -10%

Larson et.al -10%

Riber et.AL. -5.8%


Answer: - No –

12. If, you know the references in Question No.11., how you come to conclusion that the cause of death is due to amputation and unwarranted surgery?

Answer: -No-

As seen from the above answer given to the question No.10 is that “in such toxic conditions monitoring of blood glucose level and antibiotics is good enough rather than amputation”. However with regard to question No.11 and 10 he did not answer.

The opposite parties have gathered the material and research papers done by world famous doctors on the subject of The diabetic foot, medical and surgical management edited by Aristidis Veves, MD, Dsc John M.Giurini, DPM Frank W.LoGerfo, MD of United States of America and filed before this Forum. They stress upon the point that they have followed the medically accepted procedure in handling the case. The material and research papers relied upon by the opposite parties are produced herewith for appreciation, which reads as follows:

Amputation & Rehabilitations:

It has been the author’s experience that no surgical procedure is effective in itself for preventing subsequent foot ulcers. The patient with any form of lower extremity amputations must be considered at high risk for further ulceration.

Revision Amputation and amputation of contra lateral limb remain a significant problem, occurring in as many as 20% of amputee cases.

Micro Vascular Changes In The Diabetic Foot:

Diabetic foot ulceration will affect 15% of all Diabetics during their life time and is clearly a significant risk factor in the path way to limb loss. The main etiologic factors in foot ulceration are diabetic neuropathy and vascular disease the latter being further classified into MACRO VASCULAR (Atherosclerosis) and microvascular disease.

The complication of Diabetes may best be characterized as alterations in vascular stru cture function with subsequent endorgan damage and death. Specifically two types of vascular disease are sen in patients with diabetes: A non occlusie micro circulatory dis-function involving capillaries and arerioles of kidney, Retina, and Peripheral Nerves and Macro Angiopathy Characterized by Atherosclerosic Lesions of the coronary and peripherl arterial circulation. The former is unique to diabetes.

It is likely that several Bitochemical derangements exist in the presence of hyperglycemia and Diabetes and these mechanisms work synergistically to cause micro VASCULAR DYSFUNCTION. Consequently, these metabolic alterations produce functional and structural changes at Multiple areas.

In the Diabetic foot, basement membrane thickening is found in Muscle capillaries and may increase the susceptibility of diabetic foot to infection. This thickening may act as a barrier to the exchange of nutrients and activated leukocytes migration between the capillary and interstitium.

Moreover studies of Skin Micro Vascular flow have demonstrated reduced maximal hyperemic response to heat in diabetes – Suggesting that a functional Micro Vascular impairment is a major contributing factor for Diabetic foot problems. All these changes result in an inability to vasodilatation and achieve maximal blood flow following injury.

With reference to the treatment given to the patient by opting surgical procedure in amputating her leg and using high dose antibiotics without examining her body anatomically and subjecting patient to various kinds of tests though some of them are not required, the following contentions are raised on behalf of complainant:-

It is argued that if the opposite parties have carefully treated the patient, she would have certainly survived. Her death itself shows that they have not treated her carefully. For conducting surgery study of anatomy of the patient and several other factors have to be considered. The opposite parties have not cared to study the same and opted for surgery though the patient was unable to withstand for the same.

When the patient was not able to withstand for the surgery, they would have treated her by other modes instead of conducting surgery. The usage of high doses of medicines and antibiotics without analyzing the physiological as well as financial capacity of the patients to sustain for the heavy doses also shows the negligence on the part of opposite parties.

It is also pointed out that the opposite parties have advised the patient and her relatives to take up her to higher centers itself shows that their lack of expertise in the field. Instead of sending the patient to such higher centers, they have casually treated her. It is also pointed out that the opposite parties on their own opted for amputation on 18-06-03 without requisite consent by the patient and the complainant. It is alleged that they have manipulated the signatures on the case sheet. It is also alleged that the case sheet does not reflect noting of Thorn prick etc.

Ex.A8 case sheet on the reverse page shows the signatures of M.Sarojini and the complainant are found. The backside paper of Ex.A13 shows the signature of complainant in Telugu language. There is also witness signature as A.Siva Kumari in English language. The complainant counsel attributes manipulation of signatures because there is difference in the nature of signature of complainant. This cannot be accepted. The nature of signature may vary depending upon the time and circumstances. As a matter of fact there is no allegation on obtaining no consent in the complaint itself. This aspect is raised at the time of arguments.

The complainant is expected to come with an adequate evidence to prove that the opposite parties adopted and followed altogether different procedure in management of diabetic foot of the deceased, which is against the principles of medical profession. Except an affidavit of Dr.Rama Mohana Rao, a medical practitioner of Bapatla town no other evidence is produced to substantiate the case. The question is that whether the evidence of Dr.Rama Mohana Rao is sufficient enough in holding the opposite parties guilty of negligence / professional negligence.

From the affidavit of opposite parties, the patient was very badly infected with severe sepsis and uncontrolled diabetes as on the date of her admission in the hospital. Noticing the seriousness of her condition the opposite parties have explained the nature of treatment and consequences etc., and also advised to take her to higher center if they so desired. The complainant and his wife and other relatives could not take any decision to go to higher center and rather preferred to undergo treatment suggested by the opposite parties itself leaving everything to their fate. Now the question arise is that whether opting for surgical procedure on the patient is an ill advised and medically not accepted one?

The General Principles of Amputations as per the author Robert E.Tooms explain the incidents of amputation as follows:

· “In the proper sense amputation is a procedure that removes a part through one or more bones and should be distinguished from disarticulation that removes a part through a joint.”

· However, most reports agree that the number of amputations performed increases each year. This is primarily the result of an aging population with a high incidence of diabetes and peripheral vascular disease. Chronologically, the highest incidence of limb loss occurs in the 50 to 75 year age group and is mainly related to vascular disease with or without diabetes.”

· Indications for amputation:

Irreparable loss of the blood supply of a diseased or injured limb is the only absolute indication for amputation regardless of all other circumstances. A part cannot survive when its means of nutrition is destroyed; it then be comes not only useless but a menace to life because the toxic products of tissue destruction are spread through out the body.

· Some times amputation is necessary to save life when infection in a limb is uncontrollable.

· Peripheral Vascular Disease

Most amputations are performed for peripheral vascular disease, whether arteriosclerotic, arteriosclerotic with diabetes mellitus, or some other type. This indication is more common in elderly period because both diabetes mellitus and vascular diseases are more common in this age group.

The Text Book of Diabetes edited by John C.Pick Up and Gareth Williams Volume II, Chapter 70 ‘The Diabetic Foot’ reads as follows:

· Three factors predispose to tissue damage in the diabetic foot, namely neuropathy, peripheral vascular disease and infection. Infection is rarely a sole factor but often complicates neuropathy and ischaemia.

· Both neuropathy and ischaemia, frequently acting in combination and often complicated by infection, predispose to ulceration in the diabetic foot.

Chapter 68 ‘The Heart and Macrovascular Disease in Diabetes Mellitus’ in the same text book reads as follows:

· Summary:

Deaths from cardiovascular disease predominate in patients with diabetes of over 30 years’ duration and in those diagnosed after 40 years of age. Patients with proteinuria have a greatly increased risk of fatal cardiovascular disease.

· Mortality from CHD in diabetic patients is increased about two and four times respectively for males and females, compared with the non-diabetic population.

· Acute myocardial infarction carries twice the mortality of that in the general population. Contributory factors may include coexistent diabetic cardiomyopathy, blunting of cardiac reflexes by autonomic neuropathy, and adverse cardiac and metabolic effects of increased nonesterified fatty acid levels.

The aforesaid material do establish the fact that the amputation of the left leg below knee joint of late Sarojini is one of the medically accepted procedure as she was suffering from diabetic foot with infection and pheripheral vascular disease. All the opposite parties have conducted tests and discussed the history of patient and decided to go ahead with the amputation to save her life while explaining the consequences of it and also future risk involved. As the opposite parties rightly relied upon the material, in such type of patients myocardial infraction is quite possible.

The opposite parties have fully examined the case of the patient during her hospitalization and after conducting all the requisite tests they have gone for amputation. There appears to us no hasty decision on the part of opposite parties and they have followed the medically accepted procedure in doing amputation. Even the affidavit of PW2 does not say that the amputation is against the text of medical procedure. In all what he says is that taking into consideration of her physiological condition surgical procedure is unwarranted. The opposite parties have very well observed and taken all these aspects into consideration.

The learned counsel for complainant relied upon the following decision in support of his case.

2005 (1) APLJ 34 (CC) in which the National Commission held that on doctors advise, complainant got all tests carried out except for B-Scan. Upon receipt of those results, the petitioner carried out an eye surgery and during surgery it was found that this was case of retina detachment. Complainant lost his eye. Second surgery proved futile. It is established beyond doubt that medical negligence resulted in loss of eye sight.

The learned counsel for opposite parties have relied upon the following decisions.

2009 (2) ALD 67 (SC) Martin F.D’Souza Vs. Mohd. Ishfaq in which the Supreme Court of India held that (i) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence.


The testimony may also be difficult to understand, particular in complicated medical matters, for a layman in medical matters like a judge and (ii) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.

Simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

It is also in the said decision frivolous complaints are in increase, after medical profession placed within purview of Consumer Protection Act. Fear of legal proceedings resulting in overcautious approach of doctors. Courts/consumer Fora advised to keep said factors in mind when deciding cases related to medical negligence and not to take a view, which would in fact be a disservice to public.

In the above case,

(i) Achutrao Haribhau Khodwa and other Vs. State of Maharashtra and others, AIR 1996 SC 2377

(ii) Bolam Vs. Friern Hospital Management Committee, (1957) I WLR 582

(iii) Indian Medical Association Vs.V.P.Shantha, 1995 (6) SCC 651

(iv) Jacob Mathew Vs. State of Punjab and another, 2005 (2) ALD (Crl.) 334 (SC)

(v) Poonam Verma Vs. Ashwin Patel and others, (1996) 4 SCC 332

(vi) Spring Medows Hospital and another Vs. Harjol Ahluwalia thr’ K.S.Ahluwalia and Another, (1998) CPJ 1 and many other standard cases on medical negligence came up for consideration before the Apex Court. Several guidelines are set out apart from discussing medical and professional negligence of the doctors.

While criticizing about insufficient and inadequate evidence placed by the complainant, the learned counsel for opposite party relied upon I (1997) CPJ 295, Jayantilal Govindlal Parmr Vs. Managing Trustee & Others, in which the Gujarat State Commission held that there is absolutely no evidence to establish that there was any negligence on the part of the opponent in performing the operation on July 30, 1992 and that it was as a result of such negligence that second operation became necessary. First operation was on account of multiple gall stones whereas the second operation became necessary on account small strictures near bulbonus urethra. Connection between the two operations has not been established.

II (1996) CPJ 418, N.C.Sarin Vs. Moolchand Kharaitiram Hospital & Others, in which the Delhi State Commission, New Delhi observed that where it is necessary to examine a large number of witnesses in view of the pleadings of parties and the truth is expected to come out on cross examination of witnesses, the Consumer Forum can not deal with the same.

III (1995) CPJ 142, Mater Ashok Kumar Vs. Agadi Nursing Home & Another in which Karnataka State Commission observe that the deformity, if any, in the left elbow of the minor boy, was due to the negligence of the minor boy in tampering with the plaster and giving movement to the fractured elbow without waiting for the full period for the removal of the plaster. No negligence is held on the part of doctor.


II (1995) CPJ 159, Kanaiyaprasad G.Mishra & Another Vs. Dr.(Mrs.) Tanumati G.Shah & Others, in which the Gujarat State Commission, Ahmedabad held that the statements made by her in the written statement clearly go to show that she was very careful in giving treatment to the complainant and she had used her skill and knowledge in performing the operation. It was in the best interest of the complainant that she decided to close the abdomen without removal of the lump or mass on the left Adnexa. In our opinion, as already observed above, the opponent No.1 is not proved to be guilty of any negligence in giving medical treatment to the complainant.


I (1995) CPJ 11 (NC), Poonam Verma Vs. Dr.Ashwin Patel & Another, in which the National Commission, New Delhi held that the complainant and her husband had themselves approached the first opposite party for allopathic treatment and it has been found by us that the treatment administered by opposite party No.1 to deceased Mr.Pramod Verma was not vitiated by any lack of due skill, care and attention and there was no negligence at all on his part in the matter of giving proper treatment to the patient.

I (1992) CPJ 182, A.K.Piad Vs. Karithas Hospital in which Kerala State Commission, Thiruvananthapuram held that there is nothing to show that the doctors who attended on Jacob were in different or negligent in the treatment or that Jacob died on account their professional negligence. The complainant on his showing was unable to establish the case of negligence. We have thereafter to hold that he has not proved his case and that the complaint has only to be dismissed.

In view of the principles evolved by the Apex Court and other Forums and having regard to the facts and circumstances of the case, we are of the considered opinion that the opposite parties 1 to 3 have dealt the case of wife of complainant with due care and skill keeping in mind the severity of infection of the patient as explained by them in their statements and opted for amputation which is one of the recommended procedure and accepted medically.

There is absolutely no evidence on behalf of complainant to prove that the doctors have not exercised due diligence and care in treating the patient and further caused death with that of the treatment given. There is absolutely no evidence in the case that the opposite parties have committed either medical negligence or professional negligence. Therefore, we hold that there is no deficiency of service on their part. The point is answered accordingly.

In view of the findings given above, we hold that the complainant is not entitled for refund of medical expenses and compensation for mental agony etc. from the opposite parties.