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Judgment
THIS is an appeal filed by FORCE on behalf of the complainant against the order in C.D. 173/90, Dist. Forum, Visakhapatnam. The complaint is filed against the three opposite parties of whom the 1st opposite party is the Doctor, who operated the wife of the complainant on 4.11.1989 at Sagarika Hospital, which is 2nd opposite party, which belonged to 3rd opposite party. The wife of the complainant died on 19.11.1989. The complainant alleging negligence of opposite parties sought relief, namely directing the opposite parties from desisting to render the medical service to the patients in future in such negligent manner as also to pay damages Rs. 75,000/- against the 1st opposite party and a sum of Rs. 2000/- to- wards costs.
THE brief facts of the case are that the complainant''s wife Mrs. K. Saraswathi aged about 55 years was taken to the Government Hospital at Jharsuguda in Orissa State on 4.10.1989, she was examined by Dr. Nask Naik, who advised her to go to Surin Medical College. She was taken to the said medical college on 8.10.1989 where Dr. S. Panda confirmed the disease as cancer and prescribed some medicines and asked her to visit after a week. Meanwhile on 6.10.1989 the complainant obtained a second opinion from Dr. Patnayak of Rourkela, who also confirmed it as cancer and suggested Radiotherapy. On 18.10.1989 the complainant consulted Dr. Satyavathi Patel (Gynaecologist), who referred her to cancer ward for Radiotherapy. THE complainant brought the patient to Visakhapatnam and on 23.10.1989 consulted Dr. Raju (Head of the Department of Gynaecology). THE Doctor advised for Biopsy, and after the receipt of Biopsy report confirmed it as cancer of uterus. He gave his opinion that the disease is at malignant stage whereby operation is not possible and only Radiotherapy should be extended. Dr. Raju addressed a letter to Dr. Venkata Pathi Raju (Professor of Radio-therapy) and gave it to the complainant to extend Radiotherapy. On 31.10.1989, the complainant consulted another doctor by name Appala Raju. He directed the complainant to approach 1st opposite party, who in turn advised surgery, and charged Rs. 4,000/- for surgery. THE patient was admitted in Nursing Home, which is 2nd opposite party where she was allotted Room No. 304. On the next day on 4.11.1989 the 1st opposite party conducted the surgery at about 10 p.m. She was unconscious throughout night. On next day i.e. on 5.11.1989 at about 6 a.m. the patient came to senses. She was administered saline and injections throughout the previous night. By evening the 1st opposite party prescribed ''Bleumycin''. On 6.11.1989 the patient developed urine trouble, and subsequently stomach pain on 7.11.1989 for which the resident doctor of Sagarika Hospital (O.P. No. 2) prescribed medicines. On 9.11.1989 the 1st opposite party prescribed Bleumycin and Cyclophamide through saline bottle and the 3rd opposite party had done it at about 9 a.m. THEre was no improvement on 9th, 10th, 11th and 12th of November, 1989. On 13.11.1989 by about 8.00 a.m. stitches of operation were removed. By 9 a.m. the patient developed severe pain with bulging stomach. She was treated by 2nd opposite party. By 2 p.m. the duty nurse administered saline and the bottle was over within ten minutes, and the patient developed rigours for which she was given an injection. THEreafter, the patient started vomiting and stomach was burst. By 5 p.m. the 1st opposite party reoperated and the patient was kept in Room No. 103 with saline. On 14.11.1989 patient recovered senses, but there was no improvement in her condition. Till 18.11.1989 some medicines and drugs were administered. On 19.11.1989 the stitches of the second operation were removed at about 8.30 a.m. At 5.00 p.m. nurse gave one injection and a tablet. At 7 p.m. the 1st opposite party, the 3rd opposite party and Anaesthetist visited the patient. THE 1st opposite party after examining the patient declared her dead. Before taking the body the complainant asked the opposite parties to issue the bills, case sheets and other records pertaining to the patient, but they asked the complainant to come after one month. Subsequently the complainant visited number of times but of no avail. Ultimately the 2nd opposite party issued a cash billcum-certificate on 6.8.1990. Though the complainant paid Rs. 4000/- towards medicines and hospital rent, they issued factually incorrect certificate. Alleging that there was negligence on the part of opposite parties, the complainant approached Forum through "FORCE".
The 1st opposite party filed the counter stating that averments in the complaint are false. It is the case of the 1st opposite party, that complainant had brought the deceased directly to him, and when she was examined, it came to light, that she was suffering with (Stage 2) cancer of the Cervix, and he advised her to undergo surgery. Radiotherapy and Chemotherapy or combination of the above therapies. But neither the patient nor husband was willing to undergo Radiotherapy, and the complainant wanted 1st opposite party to perform surgery. The 1st opposite party denied the payment of Rs. 4,000/- towards his fees. The complainant on his own volition got admitted the patient in Sagarika Hospital (2nd opposite party). The 1st opposite party contended that the patient immediately regained consciousness from anaesthesia and her position was normal. The treatment given to the patient was strictly scientific, and he has no responsibility for the post-operative care. He admitted that the patient developed burst of abdomen as complication, but according to him, it was due to her general debility and malignant condition, but not due to any complications of surgery. The said complication was immediately attended to and re-stitches were done. He denied the payment of fees for operation, and prayed for dismissing the complaint.
THE 3rd opposite party in his counter contended that this Forum has no jurisdiction to entertain the complaint and also there was no negligence on the part of opposite parties. He also denied the averments in the complaint. He denied the fact that the saline bottles were on increased flow. THE 3rd opposite party is in no way concerned with the operation or giving of medicines. He contended that there is no deficiency in service and, therefore, the case is not maintainable. THE claim of compensation is highly excessive and not supported by evidence. Hence he prayed for the dismissal of the complaint. THE 2nd opposite party filed a memo adopting the version of opposite party No. 3. The complainant examined himself as PW 1, besides examining PW 2. On behalf of the Complainant Exs. P1 to P18, and on behalf of opposite parties RW 1 to RW 6 were examined. When the learned Counsel cross-examined the 1st opposite party, he stated that he was neither diploma holder nor post-graduate in Gynaecology. Ex. P18 contains day-to-day treatment. He stated that when the patient came to him he did not have the equipment necessary to identify cancer. The reports of Dr. Ramakrishna Raju and his findings were not shown to him. He examined the patient in his clinic, and the chit, wherein his clinical findings were mentioned, was given to the patient and it was not mentioned in the case-sheet (Ex. P15). Under Ex. P10, he advised the patient to get admitted in the Sagarika Nursing Home. In the counter he stated that the cancer is of stage II. According to his version, he did not force the patient to have surgery, but as there are only two courses open that is surgery and Radio-therapy the patient opted for surgery. Before conducting the surgery, he asked for various tests, percentage of hemoglobin, urine for albumin, and sugar, blood urea, ECG, and blood group recorded in case-sheet, which is Ex. P15. The operation was ''Radical Hysterectomy''. The surgery was confined to the removal of cancerous tissue, and removal of uterus. The opposite party No. 1 also stated that the B.P. in this case is 140/90 which is normal according to her age but not 120/80 as suggested. Bleumycin was administered on 6.11.1989. Opposite party No. 1 in his cross-examination stated that it was necessary to examine the patient under anaesthesia. As Ex. P8 Biopsy report revealed the onset of cancer, there was no necessity of checking 10% Formal in, which is used as fixation of tissue. He denied the suggestion that he did not conduct any other tests and Ex. P 15 casesheet does not contain the results. He denied that he did not take all the care and he has not conducted all the tests required to find out the stage of cancer, before he undertook the operation of the patient. The fact that the consent was not obtained from patient or her husband was not true. Bleumycin was administered to the patient on 6.11.1989 though it was prescribed on 5.11.1989. As per case-sheet the blood urea, Nitrogen and PSP tests were not conducted. Before administering Bleumycin, no test was conducted to find out renal disturbances. BUN and PSP tests were conducted two days before the administration of Bleumycin (Ex. P18) which also contains instructions, regarding the usage of Bleumycin. Opposite party No. 1 conducted all the tests that are necessary and were noted in the case-sheet. Bleumycin being a toxic drug which has got toxic effect on central nervous system was given only normal dose of 15 mgs. to the patient. The opposite party No. 1 also stated that he is competent doctor and conducted various cancer operations and can produce records. According to depositions of RW 2 he denied the suggestion that, because the patient was beyond the stage of operation, he referred the patient to Professor of Radiology. RW3 stated that he gave the removed matter to the patient''s husband for Biopsy. In cross-examination, he stated that consent of the patient and her husband was given for the operation. RW 4 who was staff nurse in Sagarika Hospital deposed that the consent for the operation was obtained. RW 5 who is the Professor of Surgery deposed that the burst abdomen may be due to various reasons namely, (1) Anemia, (2) severe respiratory infection, (3) post-operative haemorrhage, and (4), infection at the place of suturing. He also deposed that Dr. Ganeshwar Rao conducted only two cervix operations independently, that before conducting operation infection has to be controlled, the renal functions prior to operation have to be assessed. He also stated that there is need to control B.P. 4 hours before surgery and it can be done by surgeon.
RW 6, Dr. P. Satish Kumar, who is the 3rd opposite party along with three registered practitioners started Nursing Home (opposite party No. 2) deposed that on 3.11.1989 Dr. Ganeshwar Rao recommended for the admission of the complainant''s wife. At the time of admission, he asked the husband of the patient regarding the various tests to be conducted. Ex. P15 is the casesheet. After the investigations the patient was operated upon and he along with anaesthetist were present at the time of operation. On 9th day, sutures were removed and there was burst abdomen. Immediately RW 6 phoned to the concerned Doctor who attended to the surgical wound. RW 6 stated that the patient was seen last last by Dr. Durga Prasad. Between 6.30 and 7 p.m. when the Doctor was on rounds, the surgeon found the patient dead. Ex. P13 is the death certificate issued by him on behalf of the Nursing Home. The complainant did not pay a pie towards hospital expenses. In cross-examination it was elicited that basing on Ex. P10 letter, they admitted the patient in their nursing home. Ex. P15 is the casesheet. Ex. P16 is the medicine issue register. Ex. P 17 is given by the medical shop owner. Ex. P14 are bunch of prescriptions for medicines. Ex. P13 is the death certificate. The Doctor assured that the case-sheet entries will be available on 19.11.1989 Admittedly the 1st opposite party was a general surgeon and he is not Gynaecologist. But complainant approached the 1st opposite party who in turn conducted the surgery. He admitted that he did not conduct the following tests namely 1. Cystoscopy, 2. Sigmoidoscopy under anaesthesia, 3. X-ray of abdomen and uterus, 4. C.T. Scan for lymph nodes, 5. Papsmear, 6. Uterovenus neurography, 7. Bauvim enema, 8. Uterine sounding of vagina and uterus, 9. Screening.
ACCORDING to his version, he found that above tests were not necessary, because the stage of cancer can be detected by per-vaginal and perrectum examinations. He admits that there are four stages in cervical carcinoma, including carcinoma ''0'' stage and in each stage there are substages and the last sub-stage is stage IVB. In the instant case no histological grading was done by him. He states that he did not thrust surgery on the patient. He classified that there are two courses open namely surgery and Radiotherapy. It is seen from (Ex. P15) case-sheet that opposite party No. 1 performed hysterectomy on 4.11.1989 at 4 p.m. In the instant case no prognosis of the patient was done as (Ex. P15) case-sheet does not reveal the same and it is also evident that on 4.11.1989 after conducting the operation the opposite party No. 1 again visited the patient on 13.11.1989 when there was post-operative abdomen burst. Subsequently he visited the patient on 18.11.1989 and 19.11.1989. District Forum drew adverse inference against the opposite parties 1 and 3 since last page of case-sheet was missing.
EX. P 18 shows that studies like B.V.N. and P.S.P. tests must be carried out before commencing the treatment with Bleumycin. In the instant case, no such tests were conducted. So there was negligence on the part of opposite party in this regard. Further it was elicited from opposite party No. 1 that reasons for burst abdomen were not mentioned in the case-sheet. As regards to surgery, opposite party No. 1 stated that the survival rate of cancer patient after operation and on Radiotherapy is 18 months as per ''Novak''s Textbook on Gynaecology'' at P-337. Basing on this opinion. District Forum is of the opinion that had the surgeon treated the patient with Chemotherapy, the patient would have survived for 18 months. As regards to anaesthesia, the opposite party No. 1 stated that he gave local anaesthesia, which denotes the deviation from normal practice. District Forum is of the view that there was negligence on the part of 1st opposite party by not giving only general anaesthesia, for major operation like hysterectomy. District Forum held that there was negligence on the part of opposite party Nos. 2 and 3 as they have not followed the instructions given by the surgeon regarding the administration of bleumycin after second operation. This can be inferred from case-sheet P. 15 which shows they have not administered bleumycin. Opposite party No. 1 also prescribed Endoxin, which was not administered to patient. This shows the negligence on the part of the doctor attached to the nursing home (opposite party No. 3). The opposite party No. 3 administered drugs, as it is evident from Ex. P17, which did not tally with Ex. P15. RW 4 categorically stated that it is normal practice to retain the consent letter of the patient and her husband in the case-sheet. In the instant case, the case-sheet does not contain consent papers. Ex. P16 does not show the administering of drugs bleumycin and endoxin on 13.11.1989 or 14.11.1989 as suggested by RW 1 (opposite party No. 1) which amounts to negligence on the part of RW 3.
District Forum held that it is the bounden duty of Nursing Home to record the previous case history of the patient, summary of laboratory reports and sensitive test reports relating to anti-cancer and anti-biotic drugs like bleumycin and they were not done, in this case. Ex. P17 which is the cash bill relating to the statement of account for the medicines supplied for the treatment of patient (Smt. K. Saraswati) from 3.11.1989 to 19.11.1989 was given on 6.8.90 and it does not reveal the administration of garmycin and ampicillin. But the opposite party No. 3 took a stand that they merely followed the instructions of surgeon, which is contrary to their statement. District Forum is of the opinion that opposite party No. 3 ought to have followed the instructions of surgeon opposite party No. 1 and opposite party No. 1 ought to have visited Nursing Home many times. But he visited only three times. Further the medicines mentioned in Ex. P17 do not tally with the medicines noted in the case-sheet Ex. P15 or Ex. P16.
ON a consideration of material on record, District Forum held that there was negligence on the part of opposite party No. 1 and opposite party No. 3 which resulted in the death of Mrs. K. Saraswathi on 19.11.1989 and are liable to pay compensation to the de facto complainant and awarded the compensation of Rs. 20,000/- against the opposite party No. 1 awarded Rs. 50,000/- against the opposite party No. 3, and Rs.1000/- towards costs. Regarding the 1st relief claimed by the complainant i.e. to direct the opposite parties to stop rendering medical services to the patients in future the District Forum held that such direction cannot be given as it is beyond the scope of the Act. Not satisfied with the said order, the complainant preferred this appeal 558/95. The learned Counsel for the appellant contended that there is negligence on the part of opposite parties because the patient developed post-operative complication such as burst of abdomen. ON scrutinizing the order of District Forum, we are inclined to believe that the opposite parties failed to render proper service to the patient. Hence there is deficiency of service on the part of opposite parties. ON a consideration of material on record we are satisfied that the complainant is entitled to compensation of Rs. 20,000/- against opposite party No. 1, Rs. 5,000/- against opposite party No. 3 and Rs. 1,000/- towards costs. We confirm the order of the District Forum. There is no force in this appeal and is accordingly dismissed. There shall be no order as to costs in this appeal. Appeal dismissed.