BALAJI NURSING HOME vs A. ERANNA Goud

AGGRIEVED by the order in CD No. 241/2000 dated 1.1.2004 on the file of District Forum, Kurnool, opposite parties 1 to 3 preferred this appeal. The brief facts as set out in the complaint are that the complainant is an agriculturist by profession and also does Coolie work and he sustained compound fracture to his right leg in a road accident on 26.6.1999 and took treatment at Raichur. Not satisfied with the treatment there, he joined opposite party No. 1 Nursing Home for which opposite party No. 2 is the owner. Opposite party No. 1 was insured with opposite party No. 5 under the Professional Indemnity Policy. Opposite party No. 2 arranged for the surgery of the complainant by engaging the services of opposite parties 3 and 4. Opposite party No. 4 conducted the surgery with the assistance of opposite party No. 3 and the nursing staff of opposite party No.1 on 5.7.2000. The complainant approached opposite party No.1 and sought for removal of the plates inserted in his right leg and opposite party No. 4 took up the necessary surgery while opposite party No. 3 administered anaesthesia with the assistance of nursing staff of opposite party No. 1. The complainant submits that he felt severe discomfort and pain to his left hand where the anaesthesia was administered by opposite party No. 3 for facilitating the surgery of the complainant by opposite party No. 4 on 5.7.2000. Opposite party No. 3 took the complainant to Padma Chandra Kidney Super Speciality Hospital, Kurnool, and got him admitted there on 6.7.2000 and there surgeries were conducted on the complainant by Dr. Prabhakar Reddy on the neck, elbow and the left hand fingers of the complainant as there was no blood supply to the complainant''s left hand on account of improper administration of anaesthesia at the time of the surgical operation conducted on 5.7.2000. The complainant further submits that four fingers of his left hand were completely amputated and the complainant took subsequent treatment in Padma Chandra Kidney Centre, Kurnool from 6.7.2000 to 18.9.2000 and its entire expenditure was borne by opposite parties 1 and 2. The complainant submits that he incurred Rs. 30,000 as expenses, lost four fingers of his left hand and is permanently disabled in his profession only because of the negligence of opposite parties 3 and 4. He contends that opposite parties 1 and 2 are also vicariously liable for the negligent act of opposite parties 3 and 4. Hence, the complainant is seeking direction to the opposite parties to pay Rs. 2,00,000 as compensation and damages.

OPPOSITE parties 1 and 2 filed their counter and admit that the surgery was performed by opposite parties 3 and 4 and denied that there was no medical negligence in the surgery. They contend that the expenses of the complainant at Padma Chandra Kidney Centre, Kurnool, were borne by them on humanitarian grounds and no because there was any negligence on their behalf. Opposite party No. 3 filed counter admitting that he administered anaesthesia on the complainant to facilitate surgery for the removal of plates by opposite party No. 4 on 5.7.2000 but denies that there was any negligence on his behalf. When the complainant complained of pain in his left hand he was properly attended to it on 6.7.2000 at 9.30 a.m and his pain was diagnosed as vasculating of the left hand and he was referred to Dr. Prabhakar Reddy who diagnosed it as ''Embolism'' of left ulna artery and on his advice, the complainant joined Padma Chandra Kidney Centre for the necessary surgery. As he has taken all necessary precautions there is no medical negligence on his behalf and even if there are any fault and liability which has to be borne by the Insurance Company which is opposite party No. 5.

Opposite party No. 4 filed written version admitting the surgery on 5.7.2000 for removal of the inserted plates from the right leg. He submits that opposite party No. 3 administered anaesthesia to the left upper limb of the complainant to facilitate the said surgery. He contends that the surgery was conducted to the right leg of the complainant for removal of the inserted plate which was successful and, therefore, he discharged his duty without any negligence and seeks dismissal of the complaint with costs.

OPPOSITE party No. 5 filed counter stating that there is no evidence on behalf of the complainant that there was any negligence by the opposite parties. He further states that Padma Chandra Kidney Centre, Kurnool and Dr. Prabhakar Reddy, who attended to the subsequent surgeries for the complainant and amputated the fingers of the left hand of the complainant are necessary parties to the case and non joinder of them is bad. He further contends that the complainant''s claim is exorbitant and seeks dismissal of the complaint with costs. The District Forum based on the evidence adduced i.e. Exs. A.1 and A.2 and Ex. X.1 and depositions of P.W. 1 to P.W. 3 allowed the complaint directing the opposite parties 1 to 3 jointly and severally to pay Rs. 2.00 lakh to the complainant towards compensation and Rs. 9,000 towards costs within a period of one month failing which the amount would attract interest at 12% per annum.

AGGRIEVED by the said order, opposite parties 1 to 3 preferred this appeal. The learned Counsel for the appellant/opposite parties filed their written arguments and submitted that the third appellant /opposite party administered anaesthesia, comprising ATROPIN 0.5 mg, DIZAPAM 10 mg and KETAMINE 175 mg through SCALPVEIN needle into left forearm vein. On 6.7.2000 the complainant complained of pain in his left hand and it was found that the blood supply of the left hand was sluggish. Vascular Surgeon Dr. Prabhakar Reddy diagnosed the problem as embolism of left artery. On his advice the patient was shifted to Padma Chandra Kidney Centre, Kurnool and the surgery was done to maintain the blood supply and thereafter to increase the blood circulation he cut cervical sympathectamy nerve and in this regard four fingers of the complainant''s left hand were amputated. The entire expenditure incurred by the complainant was borne by the hospital. He further contends that P.W. 2 in his chief-examination vaguely states that some of the drugs used in the previous operation can cause the clotting. He does not name the drug. No effort was made by the complainant to elicit from P.W. 2 as to which drug was wrongly administered. The complainant also did not adduce any positive evidence to state that there was any improper administration of anaesthesia by the third opposite party. He also relied on the judgment of the National Commission in Mrs. Shantaben Muljibhai Patel & Others v. Beach Candy Hospital and Research Centre & Others, I (2005) CPJ 10 (NC), wherein it was held as follows: "Further, as stated above, every surgical operation is attended by risk. And, therefore, simply because something goes wrong, conclusion of deficiency cannot be drawn." He also relied on Nathan''s Medical Negligence, 1957 edition, page 104 wherein it is stated as follows: "The burden of proving negligence rests upon a person who asserts it. In medical negligence cases therefore it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill. It is by means of evidence of course the patient will seek to establish his claim, but the evidence may take several different forms......"

At para 36 it has also been held that: "Courts should be careful in censuring professional men like doctors. In the absence of clear and satisfactory evidence of negligence from which the only probably inference is one of negligence, it would be wrong to censure doctors who belong to learned profession and who are ordinarily expected to maintain high standards of professional conduct in dealing with their patients."

HE further relied on the Supreme Court judgment rendered in Jacob Mathew (Dr.) v. State Of Punjab & Anr., case reported in III (2005) CPJ 9 (SC)=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=AIR 2005 SC 3180, wherein it is stated that- "A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence."

THE learned Counsel for the appellants also submitted that the complainant did not issue any legal notice prior to the filing of the complaint and, therefore, there was no occasion for the appellants to intimate the above incident to the Insurance Company. When the Insurance Company was arrayed as 5th opposite party, the question of informing about the incident does not arise. THE learned Counsel further contended that since the appellants gave treatment in accordance with the standard medical practices there is no negligence on their behalf. We address ourselves to the aspect whether there was medical negligence or not? We have gone through the material on record. It is not in dispute that the complainant met with a road accident on 26.6.1999 resulting in compound fracture of his right leg and was admitted into the General Hospital at Raichur for treatment. As he was not satisfied with the treatment, he got himself admitted into opposite party No.1 hospital. An operation was conducted by opposite parties 3 and 4 i.e. the surgery was performed by opposite party No. 4 and opposite party No. 3 assisted by administering anaesthesia. On 5.7.2000 the complainant got himself admitted into opposite party No. 1 hospital for surgery of removal of inserted plate fixed in his first surgery. Operation was conducted by opposite party No. 4 and opposite party No. 3 administered anaesthesia. It is also not in dispute that on 6.7.2000 the complainant complained of pain in his left hand and opposite party No. 3 found that the blood supply in the left hand was sluggish and Dr. Prabhakar Reddy diagnosed the problem as embolism of the left artery. It is also not in dispute that the patient was shifted to Padma Chandra Kidney Centre, Kurnool and the surgery was done and subsequently the four fingers of the complainant''s left hand were amputated and the entire expenditure for this operation was borne by the first opposite party hospital. It is the contention of the complainant that only because anaesthesia was not administered properly by opposite party No. 3 during the surgery conducted on 5.7.2000 that there was pain in his left hand and he had to undergo surgeries on the elbow and neck and also lost four fingers of his left hand. The operation to his right leg for removal of plates is without any application. It is only the administration of anaesthesia to the left hand which has created complication to the complainant necessitating him to approach Padma Chandra Kidney Centre, Kurnool when he lost four fingers of his left hand.

The complainant also filed his written arguments in which he submitted that he is in a profession of date tapping and he is also an agriculturist and undertakes Coolie work earning Rs. 100 per day. It is the complainant''s case that he became permanently disabled with respect to his profession on account of the negligence of the opposite parties.

ON perusal of the material on record, we observe that Dr. C. Prabhakar Reddy, Cardiothorasic Surgeon was examined as P.W. 2 in this case and he admits that he performed two surgeries on P.W. 1. The first operation was vascular one to restore the blood circulation and the second surgery was on the neck for restoration of blood circulation. He deposed that the second surgery is cervical sympathectamy surgery. He further stated that the blackening of the hand occurred on account of blocking of arteries by a clot or thombrosis. He stated that some of the drugs used in the previous operation can cause the said clot. P.W. 3 i.e. Dr. K.T. Govinda Reddy who is the proprietor of Padma Chandra Kidney Centre, Kurnool, deposed that on 6.7.2000 itself the operation was conducted on the complainant by a team of doctors numbering five comprising himself and four others. It is apparent on the face of the record that it is only after the administration of anaesthesia by opposite party No. 3 that the complainant suffered complication with respect to blood supply in his left arm which left to the amputation of four fingers of his left hand. The principle of res ipsa loquitur can be applied here. With respect to the contention that Padma Chandra Kidney Centre was not added as a party , we are of the opinion that the main cause of action had taken place with opposite parties 1 to 4 and, therefore, this complaint cannot be dismissed as bad for non joinder of parties. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to specify that he died because of lack of proper care and negligence then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital.

WE also rely on the judgment quoted in Smt. Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)=IV (2004) SLT 385, Cassidy v. Ministry of Health reported in 1951 (2) KB 343: "In this case, the earlier decision in the case of Gold & Ors. v. Essex Country Council (supra), came up for consideration. Lord Denning, J. speaking for himself observed that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract for service arising in the course of the performance of their professional duties. It was observed as follows:

"The hospital authority is liable for the negligence of professional men employed by the Authority under contracts for service as well as under contracts of service". The authority owes a duty to give proper treatment -medical, surgical, nursing and the like - and thought it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates. The plaintiff entered a hospital for an operation on his left hand, which necessitated post operational treatment. While undergoing that treatment he was under the care of the surgeon who performed the operation, who was a whole time assistant medical officer of the hospital, the house surgeon and members of the nursing staff of the hospital, all of whom were employed under contracts of service. At the end of the treatment it was found that his hand had been rendered useless. The Trial Judge dismissed his action for damages for negligent treatment which he brought against the hospital on the ground that he had failed to prove any negligence. On appeal it was held that in the circumstances the doctrine of res ipsa loquitur applied, and the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part of any one for whose acts or omission it was liable, and that onus had not been discharged."

Keeping in view the aforementioned judgments, we hold that both the hospital and the doctor, who administered anaesthesia, are liable i.e. all the appellants/opposite parties are liable. The District Forum has rightly dismissed the complaint against opposite party No. 4. The opposite parties have failed to prove that they have performed their duties to the best of their ability and with due care and caution and that the doctor has acted in a manner which is acceptable to medical practices. In the instant case, we are of the considered opinion that the patient was not treated with due care, skill and diligence, and therefore, has suffered permanent ailment. Since the appellants have not specified as to what medicines were given to prevent coagulation and to prevent clots and also did not explain what exactly happened which led to the amputation of four fingers of the left hand of the complainant when he actually approached opposite party No. 4 for removal of inserted plate in his right leg. This appeal, therefore, fails and is accordingly dismissed. Time for compliance six weeks. Appeal dismissed.