BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,
ERNAKULAM.
Date of filing : 23/04/2010
Date of Order : 31/12/2012
Present :-
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 254/2010
Between
O.K. Rajeev, | :: | Complainant |
Olickal Veedu, Mekkadambu. P.O., Ambalampadi, Valakom Village, Muvattupuzha Taluk. |
| (By Adv. V.U. Chacko, Thuruthel Building, Near Court Complex, Kothamangalam. P.O.) |
And
1. Secretary, M.O.S.C. Medical College, | :: | Opposite Parties |
Kolenchery. 2. Dr. Biju Jacob, M.O.S.C. Medical College, Kolenchery. |
| (Op.pts. by Adv. R.S. Kalkura, “Srivathsa”, 61/335, Judges Avenue, Kaloor, Kochi - 17) |
O R D E R
A. Rajesh, President.
1. The facts of the complainant's case are as follows :-
On 30-07-2009, the complainant approached the 1st opposite party hospital and had undergone treatment under the 2nd opposite party doctor for clavicle fracture. After 5 days, he was discharged from he hospital with a direction for consultation after 15 days. Due to severe pain, the complainant had to approach the hospital on 14-08-2009 and the 2nd opposite party suggested an operation on 17-08-2009. On 17-08-2009, during surgery due to the negligence on the part of the 2nd opposite party a vein adjacent to the collarbone had been cut and due to the profused bleeding to the heart even the life of the complainant was in danger. At that juncture, the 2nd opposite party informed the critical situation of the complainant to the relatives and accordingly he had been taken to
Sunrise Hospital, Ernakulam. There he had undergone an emergency surgery and overcome the situation by 10 p.m. on 17-08-2009. He had to spend Rs. 1,15,000/- towards treatment expenses at Sunrise Hospital. He had to take complete rest for 6 months. Due to the negligence and deficiency in service on the part of the opposite parties, the complainant had to undergo unnecessary operation and to suffer mental agony, financial loss not only to him, but also to his family consisting of old aged parents and wife who was a nursing student. The complainant is entitled to get the hospital expenses reimbursed from the opposite parties after deducting the insurance amounts which comes to Rs. 51,369/- and also to get a total compensation of Rs. 3,85,000/-. This complaint hence.
2. The version of the opposite parties is as follows :-
On 30-07-2009, the complainant met with an accident and was admitted to the 1st opposite party hospital. He had suffered head injury with temporal lobe contusion, fracture of ribs and clavicle fracture. At the instance of the Nero Surgery Department, the 2nd opposite party examined the complainant and advised him to use arm pouch and clavicular brace as a conservative means of treatment and had asked the complainant to come for review after 2 weeks. On 14-08-2009, the 2nd opposite party had find that the complainant was not wearing arm pouch as advised, but was only wearing a brace. The 2nd opposite party had also noticed that a fragment of the clavicle was tenting the skin with possible break down of the skin and compounding of the fracture at the area in future. The X-ray indicated that there was no evidence of reunion. The complainant was advised to undergo a surgery. Accordingly, the surgery was performed on 17-08-2009. During the course of the surgery, the fractured ends were cleared of soft tissues to free all possible adhesion. Thereafter, 3.5 DCP plate was clamped on the bone with bone clamps after reduction. A lever was also used as per general practice before drilling. Fresh drill bit was taken and hand drill used while mobilizing medial fragment and putting the medial hole. When the drill was withdrawn after passing though the near and far cortex there was a large sudden uncontrolled gush of dark red venous blood through the screw hole on account of bleeding behind the bone. Immediately clamps were released plate removed, so that the inner end of the clavicle could be lifted upto reach behind and with finger pressure bleeding was arrested. Though the bleeding was controlled, bleeding source could not be identified. The team of doctors present decided to shift the complainant to a hospital having a cardio thoracic surgeon as a sternotomy may be required to access the bleeding vessel. The complainant was shifted on anaesthesia accompanied by the 2nd opposite party and taken to Sunrise Hospital. The relatives of the complainant were informed about the condition of the patient. The patient was admitted to Sunrise Hospital in a Hemodynamically stable condition. The bleeding vessel was identified and controlled after conducting a sternotomy on abnormal situation of vein in the body of the complainant just underneath the clavicle which is not visible and could not be identified by any other routine methods of investigation as is standard practice before surgical fixation of fracture of clavicle injury to vein. The very fact that the vein was injured was abnormally situated in the complainant underneath the clavicle and further exploration to locate the vein may cause further damage. In the interest of the complainant, the doctors who attended him had taken a decision to shift the complainant to a hospital where there was cardio thoracic surgeon. The orthopedic surgeon at the Sunrise Hospital also fixed the clavicle in the same manner as was intended to be done by the 2nd opposite party. The opposite parties replied to the lawyer notice of the complainant stating the real facts. There is no deficiency in service on the part of the opposite parties. The complaint deserves dismissal.
3. The complainant and his witnesses were examined as PWs 1 to 4 respectively. Exts. A1 to A6 were marked on the side of the complainant. The 2nd opposite party and the witnesses for the opposite parties were examined as DWs 1 to 3 respectively. Exts. B1 to B7 were marked on the side of the opposite parties. Heard the learned counsel for the parties.
4. The points that came up for consideration are as follows :-
Whether there is deficiency in service on the part of the opposite parties in rendering treatment to the complainant?
Whether the complainant is entitled to get a total sum of Rs. 4,36,369/- from the opposite parties towards treatment expenses and compensation?
5. Point No. i. :- The following facts are undisputed :
The complainant met with an accident on 30-07-2009 and approached the 1st opposite party for his treatment?
The injuries of the complainant were diagnosed as left temporal contusion, right fracture clavicle and multiple rib fracture, evident from Ext. B1 (b)
The complainant was discharged on 03-08-2009 with a direction to review after 2 weeks.
On 14-08-2009, the complainant was reviewed in Orthopedic OPD and X-ray showed no evidence of reunion since the fracture was displaced.
The 2nd opposite party advised the complainant to undergo a surgery.
On 16-08-2009, the complainant was admitted in the hospital for the surgery.
During surgery on 17-08-2009, the complainant sustained an injury to a vein behind the clavicle and suffered from profused bleeding.
Since the 2nd opposite party could not identify the source of bleeding the complainant was taken to Sunrise Hospital, Ernakulam.
The doctors in Sunrise Hospital could identify and control the bleeding after conducting sternotomy.
The complainant had to undergo treatment at Sunrise Hospital till 24-08-2009.
He had to spend Rs. 1,15,027/- towards treatment expenses at Sunrise Hospital.
6. According to the complainant, while conducting the operation at the 1st opposite party hospital due to medical and professional negligence of the 2nd opposite party the vein beneath the clavicle was cut and the same was shrunk to the chest with excessive and uncontrolled bleeding. The learned counsel for the complainant contended that the maxim “res-ipsa-loquitur” squarely applies in the given set of facts because per se the act of the 2nd opposite party was negligent during the surgery. The learned counsel relied on the following decisions rendered by the Hon'ble Apex Judiciary :
V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. III (2010) CPJ 1 (Supreme Court).
Manoj Sharma & Anr. Vs. Kuldeep Mahajan & Ors. IV (2011) CPJ 608 (NC).
7. Per contra, the learned counsel for the opposite parties vehemently and vigorously contended that the complainant was treated as per standard procedure and the surgery was conducted as per standard procedure and standard practice. According to him, there has been no deficiency of whatsoever nature in the light of the treatment and surgery carried out on the complainant. The counsel relied on the decision rendered by the law of the land in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others AIR 2010 SC 1050.
8. Now the question would arise, whether prima-facie the principle of 'res-ipsa-loquitor' is applicable in this case or not. The Hon'ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital (Supra) held in paras 45, 46 and 47 as follows :-
“45. In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott V. London & St. Katherine Docks Co., reported in (1865) 3 H & C 596, by Chief Justice Erle in the following manner :
“If the matter is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care. It affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
46. The learned author at page 314 para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below:
“Where a patient sustained a burn from a high frequency electrical current used for “electric coagulation” of the blood [See Clarke V. Warboys, The Times, March 18, 1952, CA];
Where gangrene developed in the claimant's arm following an intramuscular injection [See Cavan V. Wilcox, (1973) 44 D.L.R. (3d) 42];
When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [See Eady V. Tenderenda, (1974) 51 D.L.R. (3d) 79, SCC];
Where the defendant failed to diagnose a known complication of surgery on the patient's hand for Paget's disease [See Reitz V. Bruser (No.2) (4979) 1 W.W.R. 31, Man QB.];
Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and second twin [See Bull V. Devon Area Health Authority, (1989), (1993) 4 Med. L.R. 117 at 131.];
Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by hypoxia for a period of four to five minutes [See Coyne V. Wigan Health Authority, (1991) 2 Med. L.R. 301, QBD];
Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma [See Lindsey V. Mid-Western Health Board, (1993) 2 I.R. 147 at 181];
When a needle broke in the patient's buttock while he was being given an injection (See Brazier V. Ministry of Defence, (1965) 1 LI. Law Rep. 26 at 30);
Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient (See Roe V. Minister of Health, (1954) 2 Q.B. 66. See also Brown V. Merton, Sutton and Wandsworth Area Health Authority, (1982) 1 AII E.R. 650];
Where an infection following surgery in a “well-staffed and modern hospital” remained undiagnosed until the patient sustained crippling injury [See Hajgato V. London Health Association, (1982) 36 O.R. (2d) 6769 at 682]; and
Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crits V. Sylvester, (1956) 1 D.L.R. (2d) 502].”
47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.”
9. It is pertinent to note that none of the above parameters as discussed in the above case are present in the instant case. As regards, this case things do not speaks for itself. So at this stage, we are not in a position to come to a definite conclusion that there are sufficient materials to show the negligence on the part of the opposite parties. We have to analyze the oral as well as documentary evidence adduced by the parties and the medical literature to fasten the liability if any on the opposite parties. Moreover, the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab (2005) 6 SCC, held that “even in Civil Jurisdiction the rule of res ipsa Loquitur is not of universal applications and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor.”
10. The complainant alleged negligence on the part of the 2nd opposite party at the very moment, he had sustained injury to the vein underneath the clavicle at the hands of the 2nd opposite party. We pose a moment and focus on the procedure adopted by the 2nd opposite party at the time of surgery as stated in his version which reads as follows :-
“The surgery was carried on 17-08-2009 under general anaesthesia and all precautions and procedures were adopted as per the standard practice. During the course of the surgery fractured ends were cleared of soft tissues to free all possible adhesions. Thereafter 3.5 DCP plate was clamped on the bone with bone clamps after reduction. A lever was also used as per general practice before drilling. Fresh drill bit was taken and hand drill used while mobilising medical fragment and putting the medical most hole. When the drill was withdrawn after passing through the near and far cortex there was a large sudden uncontrolled gush of dark red venous blood through the screw hole on account of bleeding behind the bone. Immediately the clamps were released, plate removed so that the inner end of the clavicle could be lifted up to reach behind and with finger pressure bleeding was arrested. Dr. Saramma (Professor of Anaesthesia) who was the attending Anaesthetist was immediately told of the complication and thereupon Dr. Cyril (Plastic and Vascular Surgeon) was called for assistance. Three times bleeding area was packed tight by Dr. Cyril. However, though the bleeding was controlled, oozing continued on release of the packs and bleeding source could not be identified. In view of the above predicament the team of doctors present decided to shift the patient to a hospital having a cardio thoracic surgeon as a sternotomy may be required to access the bleeding vessel which needed a cardio thoracic surgeon. The complainant was shifted on anaestesia accompanied by the second opposite party, his assistant, Anaesthetist Dr. Tony and taken to the Sunrise Hospital where Dr. Chandrasekhar (reputed cardio thoracic surgeon) was awaiting the patient. At every point of time repeatedly as and when developments arose, complainant's relatives and bystanders were informed of the conditions of the patient. Consent was also obtained for the procedures from them. The patient was admitted to Sunrise Hospital in a Hemodynamically stable condition.”
11. According to the opposite parties, the vein that was injured was abnormally situated in the complainant underneath the clavicle. In Ext. B2 introduction to Regional Anatomy (Churchil Livingstone) Page 13 it is stated as follows :-
“BLOOD VESSELS AND LIMPHATICS:
Perhaps more than any arrangement in the body vascular patterns vary within extremely wide limits. This is not surprising when one thinks for a moment of the way in which the adult pattern is reached. The embryo is little more than a blood sponge, possessing a vast and intricate net work of anastomosing veins. Arteries are sprouting new vessels replacing the old, while the venous pattern is reached by the disappearance of most of the net work of veins in the embryo. The wonder is that such uniformity of pattern is ever attained.”
12. The cardio thoracic surgeon who performed the sternotomy on the complainant at Sunrise Hospital was examined as DW2, he deposed as follows :-
“For affixing screws drilling is necessary at the clavicle. It is not commonly seen that any vein passes immediately below clavicle in this position.
Is there any procedure to find that there is vein situated just at the location of the surgery site(Q) There is no standard procedure to locate such veins. Also it is not standard procedure to look for this vein under clavicle.(A)”
13. DW3 the Orthopedic Surgeon at Sunrise Hospital who fixed the clavicle of the complainant deposed as follows :-
“In those cases have you adopted any procedure to identify veins below or above the clavicle (Q)
By standard guidelines no such investigation is made.
x x x x x x
In this particular case, the complication arose because of the abnormal vein complication arose (Q)
It can be (A)”
14.The medical literature and the deposition of DWs 2 and 3 would show that the vein of the complainant was abnormally situated underneath the clavicle. DWs 1 and 2 categorically stated that through angiography the position of vein can be traced out. DW1 deposed that angiogram dye itself can produce dangerous reaction like an aphylaxil which can even cause death of the patient. Uncontroverted.
15. Now, the question which remains is whether the procedure adopted by the 2nd opposite party on the complainant to subside the clavicle fracture is a standard procedure or not. The procedure adopted by him, has been exclusively quoted earlier. It is to be noted that DW3 the doctor who performed the surgery on the complainant at Sunrise Hospital has adopted the very same procedure which the 2nd opposite party undertook. It would be revealed from Ext. B3 Rockwood and Green's Fractures in Adults 5th edition that the procedure adopted by DWs 1 and 3 is a standard procedure.
16. It is worthwhile to note that at the very moment the 2nd opposite party came to know that he could not identify the site of bleeding along with other doctors decided to shift the complainant from their hospital to Sunrise Hospital for the service of a Cardio Vascular Surgeon. Had the 2nd opposite party not taken a right timely decision to shift the complainant to the other hospital even the life of the complainant would have been in danger as stated by DW3. The Hon'ble Apex Court in State of Punjab Vs. Shiv Ram & Ors. (2005) 7 SCC 1, held that “A doctor in essence needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession as a whole is hemmed in by threat of action criminal and Civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery.”
17. The Hon'ble Supreme Court in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Ors. (Supra) held in para 94 and 95 as follows :-
“ 94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
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.
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.
The medical professional is expected to ring 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.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
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 another processional doctor.
The medical professional is often called upon to adopt a procedure which involves higher element or risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher 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.
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.
It would be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
The medical practitioners at times also have to be saved from such a class of complaints who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.”
18. At any point of view, we are of the firm opinion that the complainant has not succeeded in establishing medical negligence against the opposite parties except for raising apprehensive averments which necessarily cannot call for interference. The pronouncements cited above, also substantiates our stand.
19. The pleadings and arguments brought forward by Advocate V.U. Chacko appearing for the complainant is applaudable. No less is the performance of Advocate Mr. R.S. Kalkura who appeared for the opposite parties. If cases were conducted in such a good manner, this Forum is of the opinion that legal hardships could be put to much ease.
20. Admittedly, the complainant has availed medical insurance claim from his insurer. In this case, there rests his remedy. For the reasons stated above, we close the proceedings in this complaint with no order as to costs or compensation. Ordered accordingly.
Pronounced in the open Forum on this the 31st day of December 2012.
Sd/- A. Rajesh, President.
Sd/- Paul Gomez, Member.
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
A P P E N D I X
Complainant's Exhibits :-
Exhibit A1 | :: | Discharge summary |
“ A2 | :: | Discharge summary |
“ A3 series | :: | Hospital bills |
“ A3 (a) | :: | A receipt dt.24-08-2009 |
“ A4 | :: | Copy of the letter dt. 04-09-2009 |
“ A5 | :: | A lawyer notice dt. 07-09-2009 |
“ A6 | :: | A photograph |
Opposite party's Exhibits :-
Exhibit B1 | :: | Medical records of the complainant. |
“ B2 | :: | Copy of the page 13 of Last's Anatomy (9th edition) |
“ B3 | :: | Copy of Fractures in Adults by Rockwood and Green (5th edition) |
“ B4 | :: | Copy of Anatomy for students |
“ B5 | :: | Copy of new atlas of human anatomy |
“ B5 (a) | :: | The Circulatory system |
“ B5 (b) | :: | The Circulatory system |
“ B5 (c) | :: | The Circulatory system |
“ B6 (a) | :: | Anterior view of the Thorax |
“ B6 (b) | :: | Anterolateral view of the ribcage |
“ B7 | :: | Discharge summary |
Depositions :- |
|
|
PW1 | :: | O.K. Rajeev – complainant. |
PW2 | :: | P.M. Madanan Nair - witness of the compt. |
PW3 | :: | Krishnan Nair - witness of the compt. |
PW4 | :: | Majesty. R. - witness of the compt. |
DW1 | :: | Dr. Biju Jacob Abraham - 2nd op.pty |
DW2 | :: | Dr. Joseph K. Eshelbal |
DW3 | :: | Dr. Manjunath. D.S. - witness of the op.pty |
=========
