H ABDUL KHAYUM vs H V SHIVARAM

COMPLAINANT No. 1 is the father, complainant No. 2 is the mother and complainant No. 3 is the minor daughter of the now deceased Md. Yahya, who was a Coffee Planter and a Merchant who was also running an Automobile Shop at Sakaleshpur in Hassan District. The brief facts of the case are as follows:

MD. Yahya was suffering from fever in October 1999 and he was taking treatment from Dr. Rajashekar at Hassan. Since the fever did not subside on treatment, Dr. Rajashekar referred the patient to a higher Hospital in Bangalore suspecting the case as one of enteric perforation or other Gastro intestinal disorder. The patient was referred for further investigation and treatment. The patient was therefore shifted to Bangalore on 27. 10. 1999 and was admitted to OP3 Hospital where OP1 is a Consultant Surgeon and OP2 is a Consultant Physician. The complainants contend that instead of conducting investigation at the first instance to rule out that the deceased Yahya was suffering from Gastro intestinal disorder, the OPs went on conducting the Tests to rule out other possibilities and ultimately after spending 5 days on irrelevant tests, they conducted Laparotomy on 1. 11. 1999. The OPs contend that during the course of operation, the OPs initially found clear fluid, then pus in the lower abdomen and the right sub-diaphragmatic area. They also found faecal staining on the mobilization of the right colon in the right paracolic area, there was a retrocolic ascending colon necrotic patch with perforation with faecal contamination and infection of retro peritoneum which had spread down right to the scrotum causing scrotal swelling. The facal infection of the retro peritoneum with millions of bacteria of different species was present in the human excreta which according to the OPs was responsible for the septicemia. The OPs have removed the affected bowel containing perforation and normal healthy ends of the ileum and the colon where anaestomosed. The retro peritoneum and the right scrotum were debrided, washed and drained. Pus present in the pelvis and sub-diaphragmatic area was cleared and washed. The OPs have temporarily closed the abdomen with Velcro so as to facilitate re-look inside the abdomen at regular intervals. The OPs contend that the disease process of the patient had started prior to 16. 10. 1999 and that it had become symptomatic with fever chills, rigour and the patient had undergone treatment at Bharathi Nursing Home and under Dr. H. K. Rajashekar and Dr. Lingaraj and the investigation done before the patient was taken to OP3 Hospital did not clearly India that the patient was suffering from enteric fever or enteric perforation. OPs have contended that the two Doctors at Bharathi Nursing Home merely suspected that it could be enteric fever andenteric perforation and the exact nature of the illness had not been discovered.

They also contend that on admission of the patient in the OP3 Hospital on 27. 10. 1999, the patient was thoroughly investigated taking his past history into consideration. The patient was put on oxygen and was given intravenous fluid as he had difficulty in breathing. They contend that since the patient had fever for the preceding 12 days accompanied with chills, rigour, cough and breathlessness, and pain in the lower abdomen, swelling of the scrotum and since he had no indication of enteric perforation, various tests and investigations including one for Dengue fever, Leptospira, etc. were conducted. Blood samples were sent to Elbit Diagnostics for investigation of Dengue fever. The OPs contend that since the patient was brought with the complaint of fever, he was admitted in the Medical Ward.

IT is contended on behalf of the complainants that since the Dr. Rajashekar had referred the patient to OP3 Hospital expressing doubt as to whether the patient was suffering from enteric perforation and enteric fever, it was the duty of the OPs to have admitted the patient in the Surgical Ward and it was their further duty to have first conducted necessary Tests to rule out enteric perforation and enteric fever which doubt was expressed by the Doctor who referred the case for further investigation at OP3 Hospital. The complainants contend that the OPs have first committed the mistake of admitting the patient to Medical Ward instead of Surgical Ward. They have further committed the mistake of conducting Tests to rule out the possibility of Dengue fever, etc. and thereby wasted 5 precious days after the date of admission, in spite of the fact that the OPs have found tenderness and swelling in the lower abdomen and the right scrotum and in spite of the fact that the patient had pain in the abdomen. The complainants, therefore, contend that the OPs have committed the mistake and negligence which any Doctor of ordinary prudence would not have committed. The complainants further contend that on account of the OPs wasting 5 precious days in diagnosing the actual problem, the infection in the abdomen has gone out of control and the OPs could not bring the infection to control even after operation, which ultimately resulted in untimely death of the patient. The complainants also contend that immediately on admission of the patient with fever and also with pain in the abdomen, the OPs did not consult senior specialists to diagnose the actual problems in spite of the fact that the patient was not responding to drugs. Complainants have further contended that immediately after the operation of the large intestine, the OPs have put the patient on oral and non-vegetarian food which also, according to the complainants, contributed for further problems. The complainants further contend that after performing the operation on 1. 11. 1999 and after removing the affected parts of the large intestine, the OPs have kept the operated portion of the abdomen unstitched till 12. 11. 1999 which according to the complainants contributed for further infection which culminated in the death of the patient.

INSOFAR as the consulting of senior Specialist is concerned, the OPs contend that OP 1 is a reputed and qualified Surgeon and there was no necessity of referring to any other Specialist. They contend that even if consultation was necessary, they have referred the case to senior Surgeon by name Dr. Nandakumar Jayaram. Insofar as the allegations of having kept the operated abdomen unstitched for 12 days, the OPs contend that the abdomen was kept for 12 days with temporary closing to enable them to have re-look into the abdomen as a follow-up action. Insofar as the allegations relating to administration of non-vegetarian food is concerned, OPs contend that the patient was able to digest all oral feed and solid food were necessary to see that the patient did not loose stability. In the course of inquiry, complainant No. 1 filed his affidavit and answered the interrogatories served on him. Affidavit of one Shabir Pasha, elder brother of the deceased Md. Yahya was filed in support of the complainants'' case. He has answered the interrogatories served on him, Ext. Cl to C16 were marked for the complainants. On the OPs'' side, OPs 1 and 2 and one Dr. Nandakumar, Consultant Surgeon of OP3 Hospital, filed affidavits and answered the interrogatories served on them. Ext. Rl to R6 were marked for the defence. We have heard arguments and perused notes of arguments presented for the contesting parties. The main contention of the complainants is that the OPs have taken 5 days from 27. 10. 1999 to 1. 11. 1999 to take a decision to conduct the operation and in the meantime they have not taken care to rule out enteric perforation and faecal infection. In support of the defence theory that the OPs have conducted all the necessary tests on the admission of the patient on 27. 10. 1999, the OPs have produced the reports of various Tests conducted on 27 and 28. 10. 1999. These reports are produced along with their list dated 30. 9. 2005 which we now mark as Ext. R17 to R20. In Ext. R17 under the side heading, peritoneal cavity, it is written as "evidence of fluid loculation in the peritoneal cavity mainly in the lower abdomen, the suggestion of thickened bowel loop in the right lower abdomen. Under the side heading, Scrotal Scan, it is written as right side wall appeared thickened. Testis appeared swollen showed normal blood flow. These findings in Ext. R17, Ultrasound Scanning Reports go to show that the OPs have diverted their attention to the complaint of pain in the abdomen. It is not as if the OPs have not taken into account the reference letter given by Dr. H. K. Rajashekar suspecting enteric perforation.

OP1 in the course of his answers to the interrogatories served on him, at question No. 26, has stated that the X-ray and Ultrasound Scanning done on 27. 10. 1999 revealed fluid in the chest, right abdomen and right scrotum. It was submitted on behalf of the complainants that OPs having arrived at such a finding, they have failed to take further action to drain out the fluid and to find out the exact cause for the fluid collection. The OPs have contended that steps were taken to drain out the fluid on 28. 10. 1999. This fact is not denied by the complainant. The OPs have further contended that from 28 to 30. 10. 99 they were trying to find out the exact cause for fluid accumulation and in the morning of 1. 11. 1999 they along with other Doctors and with the participation of the patient''s relatives held discussion and then took a collective decision to conduct operation of the abdomen to find out the cause for fluid accumulation in the abdomen. These facts are not denied by the complainant. The OPs have contended that by the time they could arrive at such a decision, things have already gone out of control. The entire body became septic and therefore the body did not respond to further treatment. It is contended on behalf of the OPs that the complainants have not produced any expert evidence to show that the finding of the Ultrasound Scanning held on 27. 10. 1999 alone was sufficient to open the abdomen and in the absence of such expert evidence, they contend that the OPs cannot be held guilty of negligence.

THE Learned Counsel for the complainants in the course of his arguments relied upon a decision of the Supreme Court in Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, I (1996) CLT 532 (SC)= (1996) 2 Supreme Court Cases 634, in support of his arguments that production of expert evidence is not necessary in every case of medical negligence. He has submitted that where undisputed facts of the case lead to irresistible conclusion of negligence on the part of the medical man, the principle res ipsa loquitur can very well be applied to find him guilty of negligence. On going through the judgment of the Supreme Court in that case we find that the facts of the said case differ from the facts of the case on hand. In the case before the Supreme Court, one Chandrikabai was admitted to Civil Hospital at Aurangabad for delivery of child. After the delivery, she underwent sterilization operation and thereafter she developed high fever and acute pain which was abnormal after such simple operation. Her condition deteriorated. Thereafter at the intervention of another Doctor the wound was reopened by second operation. It was found that a towel had been left inside the body when sterilization operation was performed, thereby leading to infection. After the pus was drained, the abdomen was closed and even thereafter the condition of Chandrikabai did not improve and ultimately she expired. A case of medical negligence was filed against the Doctors who conducted the earlier operation. The Trial Court held the Doctors guilty and awarded a compensation of Rs. 36,000 against them. On appeal before the High Court endorsed the view that the Doctor was negligent in leaving the towel inside the abdomen, but however held that the plaintiffs have failed to prove that the said negligence had caused the death and thereby dismissed the suit. When the matter came up before the Hon''ble Supreme Court, the Supreme Court held that it was a case where doctrine of res ipsa loquitur applied. The Supreme Court held that the mop left in the abdomen has undoubtedly caused the pus and that has given rise to all the subsequent difficulties. In the case on hand, no doubt, Dr. Rajashekar who referred the case has expressed doubt as to whether it was enteric fever or enteric perforation. The report of Ultrasound Scanning revealed accumulation of fluid in the lower abdomen and the testis. However, enteric fever or enteric perforation admittedly occurs in the small intestine and not in the large intestine. The patient did not have history of typhoid which caused the enteric fever or enteric perforation. It was under such circumstances that the OPs were in dilemma as to what course of action they have to take. The OPs contend that they were still investigating the matter before they could take a decision to open the abdomen and ultimately they took a decision to open the abdomen on 1. 11. 1999 after consultation with other Doctors who are specialists in the concerned fields and in consultation with the relatives of the patient. OPs contend that before they could take a decision as to the exact procedure to be adopted the case had gone out of control. They, therefore, contend that there was no negligence on their part. They further contend that they cannot be held guilty in absence of expert evidence to show that the course adopted by the OPs is something unknown to the medical field. We accept this argument and hold that the complainants have failed to prove negligence on behalf of the OPs. The complaint fails. In the result, we pass the following order. The complaint is dismissed. In the circumstances, parties are directed to bear their own costs. Complaint dismissed.