DR. G.V.S. RAO vs K. CHINNA REDDY & ANR.

Aggrieved with the order dated 8.9.2010 of the A.P.State Consumer Disputes Redressal Commission, (in short "the State Commission") passed in FA No.1491 of 2007, the petitioner Dr. G.V.S. Rao has filed this revision petition No.4436 of 2010.

Brief facts of the case are that the son of the respondent, K.Ramakrishna Reddy went to Dr. G.V.S. Rao for treatment of his decreasing hearing capability. The petitioner advised him for Stapedotomy operation on the right ear. Accordingly, the patient was admitted in the petitioner''s hospital on 08.01.2002 and he was operated upon by the petitioner on same day. The local anaesthesia was administered by the petitioner/surgeon/Dr. Rao himself and the operation was completed. As per the complaint, the patient was complaining of severe pain in the ear and the blood was oozing out of the ear throughout the day. It has been alleged that the information was sent to the petitioner, but he did not come to attend the patient. On 09.01.2002, the patient went to the toilet and while coming back from the toilet he became unconscious. The brother of the patient called the petitioner, who came and gave medicines to the patient. The petitioner also called anaesthetist as he found it to be a case of convulsion. Meanwhile, the condition of the patient deteriorated and the petitioner shifted the patient to another hospital SVR Super Speciality Hospital. The SVR Super Speciality Hospital finally declared the patient as brought dead.

The complainants lodged an FIR with the police against the petitioner and the police got post-mortem conducted as well as expert opinion from the forensic expert of a Government Hospital namely Gandhi Memorial Hospital, Secunderabad-A.P. was also taken. Meanwhile, the complainants filed a complaint case i.e. CD No.281/2003 before the Consumer Disputes Redressal Forum-I, Hyderabad, (in short "the District Forum") for compensation of Rs.10,00,000/- alleging deficiency on the part of the petitioner.

The District Forum vide its order dated 29.12.2005 dismissed the complaint.

Aggrieved with the above order of the District Forum, complainants preferred an appeal before the State Commission which vide its order dated 08.09.2010 allowed the complaint as under: "Thus, on an overall consideration of the factual and legal aspects, we are of the considered opinion that the OP doctor is liable to compensate the loss to an extent of Rs.10 lakhs for the medical negligence which resulted in the death of the patient Ramakrishna Reddy. The District Forum failed to analyse the factual aspects in arriving at the correct conclusion about the negligence on the part of the OP doctor. The findings of the District Forum are liable to be set aside by allowing the claim.

In the result, the appeal is allowed setting aside the order dated 29.12.2005 of the District Forum passed in CD 281/2003 directing the OP to pay compensation of Rs.10 lakhs with interest at 9% from the date of complaint till realization and cost of Rs.2000/- throughout. Compliance of the order shall be made within four weeks."

Hence the revision petition by the petitioner/opposite party.

Heard the learned counsel for both the parties and perused the record.

Learned counsel for the petitioner stated that the case of the complainants is that during Stapedotomy operation of the ear, which is a Micro Ear Surgery, some artery was cut during the operation, which resulted in accumulation of blood in brain resultantly causing fainting and then death of the patient. This surgery is a standard surgery and the opposite party/petitioner is a reputed ENT Specialist and Surgeon, who has experience of operating many such cases. First of all, neither the post-mortem report nor any of the expert opinions available on file have confirmed any of the internal artery having been cut or damaged. The complaint is only based on conjectures of the complainants. In fact, according to the post-mortem report, the death was due to pulmonary oedema and cerebral oedema. None of the expert reports available on the record show anything confirming any damage done to any blood vessel inside the skull due to such operation of the ear. Therefore, the case of the complainants is prima facie without any basis and without any evidence.

The learned counsel for the petitioner also pleaded that the report was called by the criminal court from Dr. M.Ravinder Reddy, Prof.& Head of the Department of Forensic medicine, Gandhi Medical College, Secunderabad. The State Commission and the complainants are relying on this report. In this report, it has been stated that the patient''s condition was not properly monitored post-operation in a careful manner by the treating doctor/opposite party and when the condition of the patient suddenly deteriorated on the next day morning, there was no service of any anaesthetist available in the hospital for treating the patient. It is also mentioned in this report that the treating surgeon was negligent as he did not seek the assistance of anaesthetist to administer anaesthesia. The learned counsel mentioned that the surgeon administered local anaesthesia as it is considered quite safe as compared to general anaesthesia where the services of anaesthetist are required. The opposite party/surgeon had lot of experience in giving anaesthesia to the patients before such operation. As it was only an ENT clinic, so, there was no requirement of having a regular anaesthetist. When the condition of the patient deteriorated suddenly, opposite party called an anaesthetist who became available in the hospital immediately. However, the condition of the patient had deteriorated so much that he could not treat him and the patient was shifted to other hospital. The report that local anaesthesia can lead to its effect on central nervous system is not based on any medical evidence as local anaesthesia cannot act in such a delayed manner. This is a report which has been purposely given to find fault with the surgeon/opposite party. In fact, the report of Dr. Narayana Reddy, Prof.& Head of the Forensic Science Department, Osmania Medical Collage, Hyderabad, which is also available on record, totally contradicts assertions made by Dr. M. Ravinder Reddy. Learned counsel specifically pointed out to the following portion of Dr. Narayana Reddy report to argue that the report of Dr. Ravinder Reddy cannot be considered as an expert report in the present case:- "Forensic Medicine is a branch of Medicine used in Courts of Law. It deals with the application of medical knowledge in the administration of justice by the Courts of Law. Its particular field of activity is judicial investigation, both Civil and Criminal.

The Forensic Medicine Expert''s duty, while forming an opinion, is akin to that of a Judge or a Magistrate. Just as the Judge or the Magistrate takes all the associated facts into consideration to decide the case, the Forensic Medicine Expert has also the duty to consider each and every information that is available to interpret the facts, into consideration to form the opinion about the medico-legal case referred to him for his opinion.

Unlike the other branches of Medicine, the Forensic Medicine is not an exact science. It is the science of analysing the medico-legal facts, to assist the investigating officer in the investigation of a crime, and to assist the Magistrate or the Judge to appreciate the evidence in relation to the medico-legal aspects of the case. It is mostly an exercise of commonsense combined with the application of knowledge and experience, already acquired during the study of other branches of Medicine, Surgery, Obstetrics and Gynaecology, etc. during their Basic Course of Study, i.e., M.B.B.S.

The perusal of the documents mentioned in reference numbers 25 and 26 shall demonstrate to any prudent person about the fact that Dr. M. Ravinder Reddy, the author of the expert opinion cited in reference number 17 can stoop down to any extent to issue a false fabricated corrupt opinion, without any hesitation and without any feeling of shame or shy."

Learned counsel for the petitioner also pointed out to the following part of the opinion given by Dr. Narayana Reddy, Professor & Head Dept. of Forensic Medicine Osmania Medical College, Hyderabad:- "The cause of death in this case was due to the SUDDEN UNEXPECTED DEATH IN EPILEPSY. The history of the case, i.e. the Case sheet findings and the statements of the complainants, and the post-mortem examination findings are consistent with that of death due to SUDEP (Sudden Unexpected Death in Epilepsy).

It is a case of Novus Actus Inter Veniens. In this case the possibility of death due to SUDEP can neither be anticipated nor be prepared for to face the unexpected non-anticipated event. In such cases the treating doctor cannot be accused of negligence in the discharge of his duties.

The SUDEP is not an inherent complication associated with either Stapedotomy Operation or with the after effects of the Local Anaesthetic drug, administered.

In spite of the best efforts also majority of the times it may not be possible to prevent the death of the patient in cases of SUDEP.

There is absolutely no nexus between the operation and the death that took place on 09.01.2002."

The learned counsel for the petitioner has drawn our attention towards the reply to the specific question no.3 given by Dr. Narayana Reddy. The question and the answer both are reproduced below: " Q3. Whether the complications that arose during post operative stage i.e. on the next day of operation commenced at 8.45 AM with convulsions which was due to late effect of the local anaesthesia given by the OP doctor himself for which the doctor had no damage control machinery in his hospital."

"Ans 1. The SUDEP is not an inherent expected and anticipated complication to be followed during or after the Stapedectomy Operation, done under the Local Anaesthesia.

SUDEP is not one the operative or post operative complications associated with the expected in the ordinary course of nature of the consequences of such procedure."

From the report of Dr. Narayana Reddy and specific answers to the specific questions given by him, it becomes quite clear that the death was due to sudden unexpected death in epilepsy and it has nothing to do with the Stapedotomy operation of the ear or with post- operation monitoring. The petitioner/opposite party has also filed evidence of three other eminent experts namely, Dr. T.V. Krishna Rao, ENT Surgeon, Formerly Head of the Department & Professor of E,N.T. Diseases, Osmania Medical College & Superintendent, Government E.N.T. Hospital, Hyderabad, Dr.P.Sambasiva Rao, ENT Surgeon, President, The Association of Octolaryngologists of India AP State and Dr. D. Narayana Rao, Chief Anaesthetist Dr. Rao''s ENT Super Speciality Hospital, who have also given their opinions. All these experts have also corroborated that the local anaesthesia that was given to the patient is a standard procedure all over the world and its effect will last only for few hours. They have also given a clear opinion that in the surgery, local anaesthesia i.e. 1% xylocaine with 1:1,00,000 adrenaline will not cause death. Thus, the learned counsel for the petitioner asserted that all the evidence on the record except for the report of Dr. M. Ravinder Reddy goes on to show that surgeon can administer local anaesthesia for such operations and that administration of local anaesthesia cannot be a cause of death. Its effect only last for few hours and cannot last till the next day. Hence, it is amply clear that the death was due to ''sudden unexpected death in epilepsy'' and it had nothing to do with the operation of the ear performed by opposite party. Thus, in no way, surgeon/opposite party cannot be held liable for the death of the patient or for any medical negligence.

Learned counsel for the petitioner stated that the complaint has been filed by those persons, who were not present during the operation. Therefore, it is not clear how do they now the account of incidence and events that are mentioned in the complaint. No expert opinion has been asked by the District Forum and the report of Dr. M. Ravinder Reddy, Gandhi Medical College, Secanderabad, has been taken as expert report, whereas the same was solicited by the police for the use of criminal court. It was further submitted by the learned counsel that Dr. G.V.S. Rao/opposite party has been acquitted in the criminal case. Thus, the report of Dr. M. Ravinder Reddy, has not been found to be trustworthy by the court. Therefore, no criminal or civil action can be based on this report.

On the other hand, learned counsel for the respondents argued that the report of Dr. M. Ravinder Reddy, Gandhi Medical College, Secanderabad, was called by the police/criminal court and the complainants were not instrumental in getting this report. This report is an independent report asked by the court itself and hence it will be considered an expert report. The other reports available on the record are the reports solicited by opposite party and cannot be treated as expert report. They all have given report in favour of opposite party. Even the language of the report of Dr. Narayana Reddy, Prof.& Head of the Department, Osmania General Hospital, Hyderabad will show that either Dr. Narayana Reddy is professionally inimical to Dr. M. Ravinder Reddy or he has given this report under some pressure. The fact remains that the son of the complainant No.2 was perfectly alright before the date of operation and that is why he went for the operation with his bother only and no elder accompanied him. He had no history of epilepsy or any form of convulsion. Therefore, the cause of death as given by Dr. Narayana Reddy cannot be treated as correct. The cause of death has been given in the post-mortem report, which says that the death was due to pulmonary oedema and cerebral oedema. Thus, the report of Dr. Narayana Reddy,Osmania General Hospital, Hyderabad, cannot be treated as independent and expert report. Clearly it is a biased report in favour of the opposite party.

Learned counsel for the respondents also pointed out that the operation was performed on 08.01.2002 and next day i.e. on 09.01.2002, at about 8:00 a.m. when the patient came from the bathroom, he fell unconscious. Immediately the opposite party/Dr.G.V.S.Rao was informed and after his arrival, he asked bother of the patient to bring some medicines from outside. When the bother came back with the medicines, there was some other doctor with the patient and the opposite party/Dr.G.V.S.Rao had gone to SVR Super Speciality Hospital to arrange transfer of the patient without informing the bother of the patient, who was present there. It is important to peruse the hospital records, which mentions as follows:- "8-1-02

Rt. Stapedotomy and Prosthesis insertion done under LA.

Small fenestra.

0.6 x 4.5 mm piston kept.

Gelfoam seal kept.

9AM-GC fair, No vomitings, No giddiness

10AM-GC fair, No vomitings, No giddiness

9-1-02

Pt suddenly developed convulsions. Pulse oximeter & ECG monitor connected .

O2 mask placed.

Anaesthetist Dr. Narayana Rao is called.

Inj. Decadron, Inj. Efcorlin& Inj. Deriphyllin- 1 viral given.

1 point DNS started at 8:30 AM.

9-1-02

8:30 AM- Pt. developed convulsions which lasted for 20 min.

Pt. developed severe chest pain later

Pt. was placed with airway & connected to monitor

Saturation is 30%

Pulse rate is decreasing

Anaesthetist was called for.

9-1-02

8:40 AM - Pt intubated with OCETT 9 when the saturated was at 10% when the anaesthetist arrived.

Pt. developed bradycardia & later on arrested.

CPR was done

Dopamine Inj 15 mircro grams started

Inj adrenaline 1 cc given intracardiac. CPR was done.

Inj. Atropine 2cc was given I.V.

Inj. Efcorlin given

Inj. Diazepam 5mg given I.V.

Pt. could not be revived. So, shifted to a higher center for a ventilator care

Pt. could not be revived there also. He died at the Hospital later.

Pt. declared died at 11:00 AM.

Learned counsel for the respondents argued that from the above record it is clear that Dr.G.V.S.Rao/opposite party did not do anything to monitor or to see the patient''s condition from 10AM on 08.01.2002.till 8:30 AM on 09.01.2002, though, the patient was suffering from acute pain in the ear and the blood oozing out from the operated ear. It was also asserted that condition of the patient was informed many times to Dr.G.V.S.Rao, but he did not pay any heed to request to see the patient or sent any other doctor to see him. There was no service of anaesthetist available in the hospital, and after some time one anaesthetist was called from outside, who tried to do something, but it was too late. The opposite party/Dr.G.V.S.Rao tried to cover up all his lapses and incidents by secretly going to SVR Super Speciality Hospital and trying to shift the patient to that hospital. He also tried to make a case that the patient died after being shifted to SVR Super Speciality Hospital, whereas the fact is that the patient had died in the hospital of opposite party itself as is clear from the last para of above mentioned record of the opposite party''s hospital. The SVR Super Speciality Hospital has also given a certificate that the patient was brought dead. From the above record of the hospital itself it is also clear that the oxygen saturation level was 30% at 8:30AM and 10% at 8:40AMon 09.01.2002. This means that nothing was done by opposite party/Dr.G.V.S.Rao when oxygen saturation level was reducing from normal level to 30% at 8:30AM. It further reduced to 10% even in the presence of the opposite party and at this time the anaesthetist arrived, but both the doctors could not do anything. They did not have emergency medicines as they sent the bother of the patient to bring the medicines.

The learned counsel also emphasised that it is true that the opposite party/Dr.G.V.S.Rao has been acquitted in the criminal case, but the criminal case is a different matter because there the mensrea is important and benefit of doubt can be given. Thus, acquittal in the criminal case has no bearing on this consumer Case and the acquittal in the criminal case does not entitle the accused for getting freedom from any civil liability.

It was also pointed out by the learned counsel for the respondents that the report from Dr. M. Ravinder Reddy, Prof.& Head of the Department of Forensic medicine, Gandhi Medical College, Secunderabad, was asked by the criminal court and this report has clearly confirmed medical negligence on the part of opposite party/Dr.G.V.S.Rao. There is clear opinion in this report that the deceased died due to complications of anaesthesia administered by the surgeon. Thus, medical negligence is proved on the part of the opposite party from all angles.

I have carefully considered the arguments advanced by both the parties and have examined the record. It is clear from the record and particularly from the patient''s summary of treatment in the hospital of opposite party that the patient was operated on the right ear on 08.01.2002 under local anaesthesia given by the surgeon Dr.G.V.S.Rao himself. The patient became unconscious on 09.01.2002 at about 8:00 AM-8:30 AM and finally succumbed to death in the hospital of opposite party, though he was taken to SVR Super Speciality Hospital, where he was declared brought dead. The complainants are the father and mother of the deceased and they have every right to file the complaint even though they may not be present in the hospital during the operation. They have alleged that after the operation the patient was suffering from severe pain in the ear and the blood was oozing throughout the day and Dr. G.V.S. Rao did not attend to the patient. Dr. G.V.S. Rao only came when on the next day the patient fell unconscious. Even as per the version of the opposite party/Dr.G.V.S.Rao, himself, the patient was under convulsion for about 20 minutes. Though the anaesthetist was called, but by that time, the oxygen saturation had already reached to the level of 10% and anaesthetist could not do anything. In fact at 8:30AM on 09.01.2002 itself, the oxygen saturation was 30%, which further reduced to 10% by 8:40Am. It means that the episode must have occurred prior to 8:30AM. It must have taken sometime for oxygen saturation to reduce to 30% from the normal level. Clearly no proper facility was there in the hospital of opposite party to treat the convulsion, or unconsciousness of the patient. The record of treating hospital also shows that the surgeon visited the patient after the operation at 10AM on 08.01.2002 till 8:30 AM on 09.01.2002 despite complaint of severe pain and blood oozing out of the ear.

The expert report called by the criminal court clearly mentions that the convulsion may be long delayed action of anaesthesia and it is also mentioned that the deceased died due to complications of anaesthesia given by the surgeon. Though this report has been countered by report of Dr.Narayana Reddy of Osmania Medical Collage, Hyderabad, but the fact remains that the expert report of Dr. M. Ravinder Reddy, Prof.& Head of the Department of Forensic medicine, Gandhi Medical College, Secunderabad happens to be a report called by the police/criminal court and hence it will be considered as independent report, whereas the report of Dr. Narayana Reddy has been solicited by the opposite party doctor himself. Other reports/ affidavits of doctors available on record also have been filed as evidence from the side of the opposite party. Though, it is generally believed that the effect of local anaesthesia remains for only few hours and is unlikely to cause such devastating effect after about 20 hours or so, the fact remains that the Expert/Professor of Forensic Science has expressed possibility of delayed action of anaesthesia and death due to complications of anaesthesia given by the surgeon. One thing is certain that anaesthesia is supposed to be administered by anaesthetist who is an expert in the field, but in the present case, it is admitted that the anaesthesia was given by the surgeon himself. In such situation, all kinds of questions like quantity and quality become important and based on the medical records, the expert has reached to the conclusion that quantity administered is not mentioned and that the death has occurred due to complications of anaesthesia. Therefore, this report of expert cannot be brushed aside. It has also been opined in the independent Expert Report of Dr. Ravinder Reddy that: "Ans.4. Local anaesthesia was administered in this case the nature and the does of anaesthesia not mentioned. The risks involved include the action on the central Nervous system leading to convulsions and death and cardio-vascular complications like arythumias leading to death.

Ans.5. The surgeon himself has administered anaesthesia in this case, the patients informed consent was not taken for the type of anaesthesia administered.

Ans.6. The post operative complications suffered by the patient are convulsions due to delayed action of local anaesthesia on the brain leading to hypoxia and death as revealed by the recordings of the Hospital case records, the complications were avoidable and treatable if a qualified anaesthetist was available for administering the local anaesthesia and monitoring the case post-operatively."

In the report of Dr. Narayana Reddy of Osmania Medical College, it has been stated that the cause of death in this case was due to the SUDDEN UNEXPECTED DEATH IN EPILEPSY(SUDEP).It is also claimed that SUDEPis not an inherent expected and anticipated complication to be followed during or after the operation and it is not an operative or post-operative complication. We have also to note that the cause of death mentioned in the post-mortem report is pulmonary oedema and cerebral oedema. Post-mortem report is an independent report given by a totally unrelated doctor. Moreover, no history of epilepsy or convulsions is recorded or even mentioned by any family members of the deceased. According to Dr. Narayana Reddy, SUDEP is sudden. Obviously, the death was not so sudden as the problematic state lasted for more than half and hour. Based on these considerations, it is difficult to believe that the cause of death was ''SUDEP'' instead of pulmonary oedema and cerebral oedema as mentioned in the post-mortem report. Moreover, it is important to note the following observation in the post-mortem report:- " Injuries: No External injuries are noted

After reflextion of the scalp and cu-operning scalp- brain oedematus subdural haemorrhage all over the brain on cut section showing petticle haemorrhages are seen.

White maffar of the brain.

Preserved for Histopathological Examination."

The Histopathology was further done and the report is dated 12.04.2002, wherein it is reported that ''brain- normal astrocytes with oedema''. No clear finding has been given for subdural haemorrhage all over the brain. Surprisingly, no doctor has touched upon this aspect of the post-mortem report. This part of the post-mortem report supports the contention of the complainants that some injury must have occurred inside the skull which resulted in subdural haemorrhage all across the brain, which may have caused the convulsion or unconscious later. In such situation, if the opposite party was controverting the claim of the complainants about some internal injury or damage to artery, the opposite party should have clarified this issue himself or should have produced some evidence or report about the possible cause of these observations in the post-mortem report. In this background, we have no ground to believe that internal injury leading to haemorrhage inside the skull was not there. When the patient was admitted in the hospital of opposite party, he was in good condition and this internal injury in the skull and haemorrhage has occurred only during his stay in the hospital when he was operated upon and finally died for which only the opposite party would be considered responsible, whether on the point of internal injury during the operation or for complications due to delayed action of anaesthesia given by the surgeon himself as opined in the report of the expert Dr.Ravinder Reddy.

To summarise, it has been found after the above examination that the patient had died in the hospital of opposite party. The cause of death as mentioned in the post-mortem report is pulmonary oedema and cerebral oedema. The cause of death ''SUDEP'' is not found convincing. The subdural haemorrhage in the brain found during the post-mortem examination has not been explained either by opposite party or by any other report available on the record. It has been impliedly concluded by the above examination that this may be due to internal injury during the operation or due to delayed effect of anaesthesia administered by the surgeon himself without any informed consent by the patient''s family members. Also the Expert has opined that the anaesthesia was given by the surgeon himself and not by any anaesthetist. Keeping all these aspects in mind, we are of the opinion that the order of the leaned State Commission is based on correct appreciation of facts, evidence and law. We do not find any merit in the revision petition filed by the petitioner and the same is liable to be dismissed.

Accordingly, the Revision Petition No.4436 of 2010, Dr. G.V.S. Rao Vs. K.Chinna Reddy &Anr. is dismissed. Parties to bear their own costs.