ABDUL KADAR SULEMAN ALLANA vs SAPTARSHI MEDICAL AND RESEARCH CENTRE PVT. LTD.

THIS complaint has been preferred by Mr. Abdul Kadar Suleman Allana, the present complainant alongwith his son Mr. Abdul Kadar Allana (complainant No. 2) against the Saptarshi Medical and Research Centre Pvt. Ltd. (opposite party 1) and Dr. Sunil Ganesh Paranjpe (opposite party 2) alleging negligence. The case of the complainant is as follows : 1. The complainant was 65 years old with no medical ailments prior to this complaint for which he was admitted to Sangam Hospital, which is owned by Saptarshi Medical and Research Centre Pvt. Ltd. The patient was admitted to Sangam Hospital on 13.9.1995 and the operation of left Inguinal Hernia was performed on the patient on 14.9.1995 by opposite party No. 2. On the operation table, it was confirmed that the patient had sliding variety of Inguinal Hernia. THIS hernia had sigmoid colon, in left large intestine in Hernia wall and it was covered with a lot of fatty tissue. The recovery of the patient was uneventful and the patient was discharged on 16.9.1995.

ON 18.9.1995, the patient experienced sweating and there was a drop in B.P. and suspecting the problem to be of cardiac origin, Dr. B.S. Yadav of Sangam Hospital who was called to the residence, advised re-admission to the hospital as a abundant precaution. Accordingly, the patient was admitted on the same night and Dr. Kamath, a physician, also checked him for cardiac problem. Opposite party 2 checked the patient on 19.9.1995 and found that the wound of the operation had been indurated and he prescribed higher antibiotics. On 19.9.1995, Dr. Jagdish Parikh who also consulted for second opinion and he made a guarded diagnosis of query "Peritonitis/obstruction" which was not taken seriously by opposite party. The patient''s son, complainant No. 2, requested opposite party No. 1 to shift his father to a bigger hospital in view of the above complication. Opposite party 2 did not react to that and delayed shifting the patient to Nanavati Hospital till 23.9.1995 as a result of which great harm was caused to the patient and the patient''s condition further deteriorated. At this stage, if opposite parties had detected peritonitis, no repeat colostomy would have been necessary and prolonged stay could have been obviated.

It is complainant''s case that opposite parties had not conducted their affairs in the case as per the requisite standards of minimum care. He contended that opposite party 1 is guilty of unfair trade practice by engaging doctors, nurses and para-medical staff who were not trained to manage any kind of complications. He further contended that by not discovering the perforation in time and delaying the same, he had to undergo the following operations. (a) Exploratory Laprotomy (b) Opening of Colostomy (c) Reconstruction of Colostomy (d) Secondary stitch of wall of abdomen (e) Exploratory laprotomy and closure of faecel fistulae (f) Exploratory laprotomy with resuturing deferment of wound and secondary suturing.

THE learned Counsel for the complainant explained that Inguinal Hernia is a mass visible on standing, coughing and disappears only on lying down. THE incidental finding will only be due to the fact that the abdominal wall is no longer able to recast the peritoneum and the intra abdominal pressure such as intestine. THE known standard treatment is by closing the opening of the peritoneal sec which has protruded through the Inguinal canal long with the tests. All layers of the Inguinal canal are carefully cut open and the opening of the peritoneum closed by suturing. THE excess peritoneum is encased and the resuturing of the layer connection to each of the repeated layers of the Inguinal canal. It is the complainant''s case that if the repair of the Inguinal Hernia which is known as Herniography is done carefully under no circumstances can the lower portion of the intestine be perforated of ruptured as the same has no connection with the said operation. He contended that the opposite party No. 2 did not only notice the perforation at the time of closure but also ignored at a later stage even though symptoms had manifested is no doubt, a gross negligence. Concluding that it was a surface bound infection and treating casually in spite of notations made by Dr. Jagdish Parikh that it was a case of peritonitis/obstruction allowing the patient to deteriorate further. Had the situation been assessed to its very inception, the peritonitis could have been controlled by exploratory laprotomy washing of the peritonia.

THE learned Counsel for the complainant submitted how the dialysis process led to septicemia. To begin with, peritonitis is defined as infection and inflammation of the peritoneum cavity which is like a sterile wet balloon. When a surgical instrument piercing the peritoneal cavity, bacteria growing with trauma and inflammation which in turn releases toxins and the infection spreads. When this occurs, the same toxins enter the bloodstream and causes septicemia. Opposite party 2 ignored all the warning signals for five days and only after Dr. Garud (Surgeon) as a consultant advised to transfer immediately to - well-equipped hospital, the patient was discharged. THE Counsel pointed out that the discharge card signal by opposite party 2 stating "Septicemia is caused due to peritonitis and not due to hernial wound infection in the present case". The patient was then transferred on 23.9.1995 to Nanavati Hospital, whom he was the septaecemic shock and he was immediately operated on lasting for three hours and they diagnosed that it was faecal fistula from sigmoid colon. It is the complainant''s case that fistula was septicemia to the peritoneal cavity and that septecemea in the present case is due to faecal peritonitis. He further submitted that due to the failure on the part of the opposite parties to even identify the cause of infection which any doctor of reasonable skill would have detected, it amounts to gross negligence and non-application of mind. In Nanavati Hospital, the complainant was in ICU from 23.2.1995 till 31.10.1995 and in the second class ward from 8.11.1995 till 16.2.1996 altogether for a period of 145 days. During this period, he had to undergo 10 major and minor operations, due to deficiency in service and negligence displayed by opposite parties. It is further submitted that complainant 2 should be also compensated for loss of time, business loss and mental agony, because he being the son, had to spend all his time with his father till he recouperated. Both the complainants claimed Rs. 15,63,583.42 out of which complainant No. 2 claimed Rs. 4,50,000/-, Rs. 2 lakhs for loss of business and Rs. 2,50,000/- for mental agony. Complainant No. 1 claimed Rs. 5,00,000/- for mental agony and the rest were the charges paid to both the hospitals and other services. It is also contended that opposite party 1 is guilty of not having qualified staff and mere contention that they were mere observers is untenable. The complainants stated that Dr. Quereshi, Dr. Khan and Dr. Meena possess the qualification of Bachelor of Electropathetic Medical services which is not a Government recognised degree approved by the Medical Council.

MEDICAL text references were brought to our notice on "Sliding Inguinal Hernia" by Julius A. Mackie Jr. M.D., Henry D. Berkowit, M.D. "Sliding inguinal hernia refers to that type of hernia in which some portion of a partially retro peritoneal viscus slides" downward to form part of the wall of the sac. On the right side the cecum and ascending colon are usually involved. On the left side the sigmoid and descending colon are most commonly found in the hernia sac. The bladdar is uncommonly a component of a sliding hernia, but it has been found occasionally.

IT is further discussed under "operative complicatious" regarding damage to the bowel, "Meticulous attention must be given to suture placement during high ligation of the sac of an indirect inguinal hernia. Blind suturing is never acceptable because of the possibility of incorporating a loop of bowel within the suture, leading to subsequent development of a facal fistula, an abscess within the intestinal wall or intestical obstruction". The same article also warns that incautious dissection in this area may result in haemorrhage or compromise of the vascular supply, leading to necrosis of the bowel wall because blood supply to the bowel enters at the posterior aspect of a sliding hernia. Suggesting various ways of handling if the colon is entered inadvertently, it was proposed that careful two-layer closure, using catgut to the mucosa and interrupted non-absorbable sutures in the seromuscular layer must be performed. "Bowel closure is followed by irrigation of the wound with large volumes of saline or antibiotic solution, and then the hernia repair is continued" was noted in this article. The learned Counsel said that opposite party 2 had not practised the normal expected procedure in the present case when the patient was readmitted with the said problem, he should have irrigated the wound and the layers should be carefully closed according to the standard medical text requirement. Having not adhered to this, the opposite parties are negligent in handling the post-operative treatment of the patient and the complainants should be compensated for the suffering endless operations, loss of time, cost and mental agony.

Complainants'' Counsel vehemently argued that the operation of the Inguinal Hernia was performed negligently and although on readmission, the patient''s symptoms of fever with rigor and pillor which warranted the diagnosis of Peritonitis was ignored. This clear neglect of the doctors to treat its surface wound and treat it non-aggressively for five days by administering of anti-biotics and deteriorated the condition of the patient to septicemia although Dr. Jagdish Parikh had clearly opined that it was a case of peritonitis. The hospital without laboratory facilities and not fully qualified doctors and nurses is misrepresenting to the public at large which is clearly an unfair trade practice. Keeping all the above factors, they prayed their claim be awarded entirely for the unnecessary cost of expenditure, and time loss, mental agony and consequential losses caused due to the long stay of the patient in the hospital. The complainants Counsel took us through series of cases decided to support her contentions as given below : (1) Supreme Court-Spring Meadows Hospital & Anr. v. Harjot Ahluwalia, I (1998) CPJ 1 (SC). The Court held in this case that the meaning of Section 2(1)(d), Clause (ii), includes the beneficiary of the services. The Court also held that the administration of an injection made the hospital vicariously liable, if given by an unregistered nurse. (2) State Commission, Maharashtra-Altaf Hussain Farooqui v. Dr. Ashok Mathure, 1998 (1) CPR 427. The State Commission held that the failure to diagnose that there was biliary peritonitis and there was delay in treatment in biliary acitics amounted to negligence and a total compensation of Rs. 2,50,000/- was awarded. (3) State Commission, Kerala-Dr. S.N. Namboodri v. Haneefa, I (1998) CPJ 389. The State Commission held that when there was no proper investigation was conducted and the laboratory attached to the hospital was not a standard one and as a result of which the condition of the patient deteriorated, there was no negligence. (4) National Commission-Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi Fadnavis & Ors., I (1998) CPJ 49 (NC). The Commission held that there was gross negligence in treatment which amounted to deficiency in services. (5) State Commission, Kerala-A.M. Mathew v. Director, Karuna Hospital, I (1998) CPJ 476. The Commission held that the hospital was responsible for the acts of its employees and was liable to pay compensation. (6) State Commission, Chandigarh-Bhiwani Dutt v. Nehru Hospital & Ors., II (1998) CPJ 102. The Commission held that treatment for gastric problem for which the ulcer nerve was damaged for which the Commission awarded compensation.

THE learned Counsel for opposite parties submitted that at the time of discharge, the patient was normal on 16.9.1995 and had no pain. He further added that the recovery of the patient was uneventful and the patient had passed stools on the second day of the operation. He denied the allegation that the patient had fever and pain in the wound at the time of his readmission on 18.9.1995. Dr. Kamath a competent and qualified physician was called on 18.9.1995 late night to rule out any cardiac problems. Opposite party 2 had checked the patient on 12.9.1995 and found that the wound of the operation had been indurated and antibiotics were prescribed accordingly. Dr. Jagdish Parikh''s opinion was also sought and taken his guarded diagnosis of query pertonitis/obstruction. Opposite party 2 did ultrasonography and sent the pus from the wound site for culture and antibiotic sensitivity test. Opposite party 2 further added that the patient showed signs of improvement initially and only on 23.9.1995, the patient started getting fever and swelling developed on the left side of the abdomen and increase of pus. However, sonogrphy was repeated to rule out any intro-abdominal connection as an abundant precaution. Opposite party 2 called for senior consultant Dr. T.V. Garud for a second opinion that the patient was in need of a bigger institutional care since the collected fluid on the left side of the abdominal wall required to be drained. Opposite party 2 immediately consulted with the relative and shifted the patient to Nanavati Hospital without any further delay.

THE learned Counsel emphatically stated that had such perforation really occurred the patient would not have passed stools normally on the second day of the operation. He further contended that no evidence or medical experts'' opinion was placed by complainants to establish that perforation occurred during the said operation. Had there been perforation as alleged, it would have manifested itself within the first few hours of operation and the patient would have revealed symptoms like guarding, rigidity, lack of peristalsis and distention of abdomen and such signs were all absent in the present case. He further stated that Herniorrhapy is a surgery which is performed as an ambulatory surgery where the patient goes home on the same day of surgery, late in the evening and that complainant is under a false motion that he was discharged within three days which was an inadequate period. It was submitted that on re-admission of the patient on 19.9.1995 at 12.30 a.m., Dr. Kamath saw the patient and noted that the patient was ''Afebrile'' which means that patient did not have temperature whereas the complainant alleged that he had temperature. He further clarified that immediate treatment was given by starting anti-biotics to treat whether the infection superficial or intra-abdominal. There was no delay in the treatment and pus was sent for sensitivity culture test on 20.9.1995 and the results were awaited and reasonable additional medication was administered the moment pus was seen. He further clarified that Sangam Hospital has pathology laboratory and the report was expected in this case in 72 hours. He stated that complainant made false statements about the laboratory which were contradictory as it was pointed out once that the report came on 20th itself and elsewhere that it takes seven days. He submitted that the lab is handled by Dr. Shashank Inamdar, who is a qualified M.D. (Path.) and that complaint is unfounded. The learned Counsel took us through the hospital papers meticulously and submitted that the discharge summary of Nanavati Hospital reflect that exploratory laparotomy, transverse colostomy, opening of colostomy and reconstruction of colostomy and secondary suturing of wound over abdomen were done within three months which clearly indicate that there was some inherent inadequacy of the patient and that something physiologically wrong and hence the patient has developed resistance to the antibiotics. He contended that constant care and treatment with caution was given in his hospital and the diagnosis made by opposite parties was continued in Nanavati Hospital and opposite party 2 being alert called for expert''s and sent the patient to Nanavati for better I.C.U. care and other facilities. Ensuring better care and treatment for the patient in a bigger hospital cannot be termed as negligence and instead proves otherwise diligence.

HE defended that the affidavits furnished by renowned surgeons like Dr. C.V. Patel, Dr. Sudhir Rajaram Padhe and Dr. Vijay Madhav Deshmukh, who have opined on the said care and he relied on them to support his case. Further referenecs of medical texts from Pye''s Surgical Handicraft by James Kyle, Recent advances in Surgery by RCG Russel and Bailey''s and Love''s short practice of Surgery by A.J. Harding Raina and H. David Ritchic. HE also defended that qualified doctors and nurses from recognised institutions been employed by opposite party 1 and that complainant''s contentions in this regard were unqualified statements.

AS regarding law in support of his case, the learned Counsel brought our attention to the following cases decided by National Commission. In Sethuram Subramanian Iyer v. Triveni Nursing Home & Anr., it was held that "It appears from the record that the complainant did not requisition the services of any expert to support his allegations. In the absence of any expert evidence, on behalf of the complainant, the State Commission was right in relying upon the affidavits filed by the four doctors on behalf of the respondents". It was again held in Subhashis Dhir & Anr. v. Smt. Sen Gupta & Ors., that- "We have not been shown any expert medical opinion that the treatment given and the medicines prescribed by the two appellants were wrong. Even if it is assumed that the two appellants had erred in their judgment, it can not be held straight away that there was medical negligence or deficiency of service." National Commission clearly quantified in its direction on medical negligence in Kanhaiya v. Park Medicare and Research Centre, where it held that "Negligence has to be established and cannot be presumed". In Consumer Protection Coucil & Ors. v. Dr. N. Sunderam & Anr., they held that "No medical expert nor even the Doctor who treated Mrs. Rajyalakshmi for the renal failure has been examined on the side of the complainants. Such being the state of evidence, the State Commission was, in our opinion, perfectly right in rejecting the aforesaid plea but forward by the complainants".

He contended that in the absence of any medical expert''s evidence or opinion, the case of the complainant is devoid of merits and deserves to be rejected. He defended that opposite parties had put in all their might and responsibility in carrying their duties diligently and that the patient is alive today only because of their efforts. He further contended that opposite party 2, a budding Surgeon had to suffer a severe set back in his carrier and this case damaged his reputation. Opposite party 2 ever visited the patient in Nanavati Hospital out of sheer responsibility which has never been appreciated by the patient. He argued that there has been not even a shred of evidence of any negligence, want of care or skill or deficiency of service on the part of the opposite parties and that it is a fit case to impose compensatory costs on the complainant for dragging him to the Commission.

We heard both the parties at length and after perusing all the hospital papers which were placed by both the parties, we believe that the opposite parties were not diligent in handling the problems when the patient had came back on re-admission. They definitely treated it as stitch abscess and did not explore the site of wound to do colostomy which could have prevented the complications which developed as a Chain reaction. In spite of all the affidavits of doctors and his arguments, opposite parties could not convince us as to why the patient had to undergo ten operations on the same problem. Mere explanation that there was no guarding and passage of urine and stool was unobstructed is untenable. Even a small perforation is sufficient to give rise to peritonitis without total obstruction of the bowel. Though the operation was on left side, there was a perinopheric collection on the right side and it shows peritonitis had become generalised and had spread. It is very clear that though the patient was passing stool, and the remnants were remaining causing bacterial infection resulting in peritonitis and subsequently septicemia.

WHEN Dr. Jagdish Parekh had diagnosed peritonitis/obstruction, it is a clear indicator to opposite party 2 to take serious note that it is peritonitis and not a mere Hernia bound infection. The wound was opened and cleaned from time to time when the toxins and pus were going into blood stream and disturbing the metabolism of the blood and vital signs. Septicemia thus occurred due to the pus and from the peritoneum. It is only when Dr. Garud (Surgeon) advised to transfer complainant immediately to a well-equipped hospital did the opposite party 2 realise the seriousness of the condition of the patient. His signed discharge summary status as "Septicemia due to hernial wound infection" opposite parties'' explanation that the patient has not followed hygienic conditions at home or that he actually has other unexplained physiological lapses in his system, are totally untenable. It is the perusal of clinical notes alongwith the arguments which lead us to decide that opposite party 2 was negligent in treating the patient in time in spite of clear indication of the said complication which in turn has caused the complainant to undergo ten operations and had to be hospitalised for 145 days at Nanavati Hospital. Holding opposite parties for non-diagnosis of peritonitis and not providing remedial treatment in spite of clear indication given by other doctors, we believe complainant No. 1 should be compensated for all costs incurred during the hospital care and also at home. We cannot give compensation, claimed by complainant No. 2, for the loss of time, resulting in his career loss and monetary strain, while spending all his time with his father, the complainant No. 1 although we sympathise with him. In our country, children serving their parents in times of need such as this is a known tradition and felinial expectation and one never weighs the time spent for taking care of parents and expects to be compensated monetarily for the set back in their business. Besides, there is no direct evidence to show that this monetary loss is based only due to the negligence of opposite parties and speculative losses cannot be considered by us.

THE costs incurred by the complainant No. 1 in surgery and Nanavati Hospital and other medical and nursing, legal costs are all considered and we find a total of Rs. six lakhs have been spent by complainant as per the receipts and records and in addition Rs. one lakh for mental agony is to be given to him which would reasonably compensate him. With these directions, we pass the following order : Order We direct the opposite parties to pay Rs. 7,00,000/- to the complainant No. 1 within 2 months from the receipt of this order. Complaint allowed.