Jss Hospital vs Pankajrani

THIS revision petition has been filed by the Medical Superintendent/M/s. JSS Hospital and two other doctors (hereinafter referred to as ''Petitioners'') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Karnataka (hereinafter referred to as the "State Commission") in Appeal No. 528/2005 in favour of Smt. Pankajarani and others (hereinafter referred to as the ''Respondents'').

THE facts leading to the complaint filed by the Respondent No. 1 are that her husband, late S.M. Prasad who was a practising Advocate at Kollegal had developed hoarseness of voice on September, 1999 which got aggravated because of which he approached Petitioner No. 2, Dr. Shiva Kumar, ENT Surgeon at the Petitioner/hospital for diagnosis and treatment. On the advice of Dr. Shiva Kumar, Respondent''s husband was admitted in the hospital and a provisional diagnosis was made that it was a case of chronic Laryngitis/nodular lesion over left vocal chord leading to a suspicion of carcinoma of the larynx. The patient was, therefore, advised to undergo micro larynginal examination/biopsy in order to confirm the diagnosis and take further treatment. These procedures were scheduled for 8.00 p.m. on 6.9.2001 but certain complications occurred because of which the operation could not be completed and it was decided to perform Tracheastomy on the patient at 9.30 p.m. for which high risk consent was obtained from the son of the patient as per the case sheet. After the Tracheastomy, the general condition of the patient deteriorated and despite being put on a ventilator, there was no improvement and he was declared dead at 10.30 a.m. on 7.9.2001. According to the medical records, the cause of death was stated to be cardio respiratory failure secondary to MI(?), restrictive lung disease secondary to chronic smoking. According to the Respondent, earlier tests conducted on the patient did not indicate that he was suffering from any lung disease and he was diagnosed with only chronic laryngitis/nodular lesion over the left vocal chord. It, therefore, appears that while conducting the Tracheastomy, there was some negligence resulting in respiratory failure and death was not due to any lung disease or myocardial infraction. Respondents therefore, approached the District Forum on 8.9.2003 i.e. two years after the death of the deceased because the Respondent was hopeful that as promised, the Petitioners/hospital would provide employment to the son of the deceased and they had requested Respondents not to precipitate the matter. However, since Petitioners failed to keep this commitment, Respondents, therefore, filed a complaint before the District Forum on grounds of medical negligence and deficiency in service and requested that Petitioners be directed jointly and severally to pay to the Respondents compensation of Rs. 11,80,000 along with interest @ 9% from the date of complaint till realization of the entire amount for causing the death of her husband on whom the entire family was dependent. Further, this was a justifiable amount because the children of the deceased were not settled and with the death of the deceased, the family was put to great financial hardship.

PETITIONERS on the other hand denied that there was any medical negligence which resulted in the death of the Respondent''s spouse. According to them, during the direct larynginal examination before performing the surgery, Petitioner could not see the vocal chord and the lesion of the patient and, therefore, the procedure was abandoned without doing either the micro larynginal procedure or the biopsy. Since the patient was expressing some respiratory distress, efforts were made to relieve this condition by inserting an E.T. Tube but the patient could not tolerate the insertion of the Tube and tried to take it out himself. It was only then that a decision was taken to do a Tracheastomy to ease the respiratory distress for which high risk consent was taken as per the normal practice and the procedure was performed. Despite this, the patient''s condition did not improve and, therefore, no surgery could be performed. The patient was put on spontaneous breathing and given continuous medicines but his condition deteriorated and despite best efforts of the doctors he could not he revived. His death was attributed to cardio respiratory failure secondary to M1 (Miocardial Infraction) and Restrictive Lung disease secondary to chronic smoking. There was no negligence in dealing with this case and the patient was under the treatment of a specialist ENT surgeon who had done many emergency and elective Tracheastomies both under local and general anaesthesia and on patients whose condition was much worse than that of the patient. Thus, the death occurred despite best medical treatment and care and was attributed to his chronic problems prior to the surgery.

THE District Forum after hearing both parties and considering the evidence on record observed as under: "RW-2 Dr. Basappa who is H.O.D. of medicine since 10 years states that he gave medical fitness for the investigative procedure after applying his mind to all required parameters. Even for doing trachiostomy, proper decision was taken by O.Ps.2 and 4 because the patient was not tolerating endotrachial tube. This decision was taken when Mr. Prasad went into respiratory distress. This procedure was mainly required to maintain an airway in post-operative ward because the patient had a growth in the upper airway region. We do not find any deficiency or shortcoming in conducting this procedure which was essential to relieve the patient from respiratory distress. It is clear from the case sheet as well as the evidence of RW1 and RW3 that immediate consultation was held with physician on duty (page No. 22 of case sheet). Required medical treatment was given and the condition of the patient was monitored in the ICU. It is further seen that O.Ps.2 and 4 were continuously present by the side of the patient till he breathed his last. It is also seen from the records that the condition of the patient became serious, continued to be same in spite of the treatment and at about 10.00 a.m. he was not responding to oral commands. The ECG showed V-7 went on for V-F suddenly. Ventilation was continued with 100% Oxygen, and he was given shock treatment. Even resuscitation continued but Mr. Prasad could not be revived. He was declared dead at 10.30 a.m. Nothing is brought to our notice that the line of treatment was not proper and something more could have been done in this case. Lastly, not much inference can be drawn from the fact that the cause of death is shown as "suspected". Such cause of death can be confirmed only by way of Post Mortem examination. In the case of Mr. Prasad the immediate cause of death is "cardio respiratory failure". This is supported by the ECG charts. The secondary cause of death is noted on the basis of the history given by the patient and clinical findings which were available from the records. Chronic smoking can definitely be called as secondary cause of death, which may also cause restrictive lung problem."

THE District Forum further stated that the Respondents did not support their allegations with any expert evidence and did not even care to cross-examine the medical expert who had appeared at their instance before the District Forum.

AGGRIEVED by this order, Respondents filed an appeal before the State Commission. The State Commission allowed the appeal by observing that in all probability complications developed due to the irregular procedures adopted by the Petitioners in treating the case including an excessive dose of anaesthesia administered to the patient. The State Commission further observed that the case-sheet did not adequately explain the details of the treatment and the reasons for the complications. It commented adversely on the fact that the Tracheastomy was conducted twice on the patient at 8.30 pm and again at 12.00 a.m. and without taking the required consent for the second Tracheastomy. The State Commission noted that prior to the surgery, the patient was "hale and healthy" and it was because of medical negligence in the operation theatre that patient died. The State Commission also took adverse note of the fact that the Petitioners did not advise post-mortem which was necessary because Petitioners had put a question mark regarding the cause of death due to Miocardial infraction. The State Commission concluded that there were several gray areas in the treatment of this patient and, therefore, it is fit case where the maxim ''res ipsa loquitur'' is applicable. The State Commission, therefore, held Petitioner Nos. 1, 2 and 4 jointly and severally guilty of medical negligence and directed them to pay Rs. 2 lakh to the Respondents with interest @ 9% p.a. from, the date of complaint till the date of realization as also Rs. 10,000 as litigation cost.

HENCE, the present revision petition. Counsel for Petitioner was present. None was present on behalf .of the Respondents. However, since service was complete, it was decided to proceed with the case ex parte. Counsel for Petitioner stated that the State Commission erroneously concluded that there was medical negligence by basing their judgment on wrong facts. For example, it is not correct that the Petitioners did not adequately record what happened in the operation theatre. A perusal of the case-sheet clearly indicates the various steps taken and also lists out reasons for not undertaking the required diagnostic procedure and also for performing Tracheastomy. The State Commission has also wrongly stated that the Tracheastomy was done twice. In fact as is clear from the case-sheet it was done only once at 12.00 a.m. and that too after taking the required consent of Respondent No. 2 and explaining the risks involved. Counsel for Petitioner further contended that it is also not correct as observed by the State Commission that the patient was in good health at the time of his admission. He was admitted with health problems and, therefore, his own consent was taken before hand explaining the risks of the procedures involved. Further, Respondents on whom there was onus to do so were not able to produce any expert evidence in support of their contentions of medical negligence. The principles of what constitutes medical negligence are well established and in the instant case since the patient was looked after by competent and skilled doctors and was provided correct and meticulous medical treatment, the State Commission wrongly concluded that there was medical negligence and deficiency in service.

WE have heard the learned Counsel for Petitioners and have carefully gone through the evidence on record.

WE find that detailed notes regarding the case history of the patient and the treatment given to him at every step has been filed in evidence. WE also note that the State Commission has erred in wrongly recording certain facts pertaining to this case, for example, that the Tracheastomy was done twice which is contrary to the facts on record. WE also cannot agree with the observations of the Stale Commission that what happened inside the operation theatre has not been adequately explained by the Petitioners in the case-sheet which also does not disclose the reasons for the medical complications. In fact, the case-sheets are quite detailed and the State Commission has itself has quoted comprehensively from it in its order. For example, the case-sheets explain why the diagnostic procedures had to be abandoned and also give reasons for performing Tracheastomy on the patient. WE further note that there was a team of doctors in attendance which apart from the ENT surgeon also included an Anaesthetist and a Physician. The State Commission''s observation that the patient was hale and healthy prior to the admission in the Petitioners'' hospital is also not factually correct. It is clearly stated in the patient''s case history that at the time of admission he was a chronic smoker for 35 years, had hoarseness of voice for more than two years and was a suspected case of cancer of the larynx. It is because of these chronic medical problems that right from the beginning the patient was treated as high risk and his consent taken to conduct the necessary procedure. The principle of what constitutes medical negligence is now well established in view of a number of judgments of the Hon''ble Supreme Court as also of this Commission. A case of medical negligence is made out when the medical practitioner concerned is not duly qualified to treat a patient and the level of care expected from a professional exercising a reasonable degree of skill and knowledge is absent. In the instant case the doctors were fully qualified and from the evidence on file including the detailed case history as discussed earlier, due care and precaution were taken to treat the patient throughout his period of hospitalization. He unfortunately expired because of complications attributable to his chronic medical problems. Equally importantly it has to be noted that the Respondents on whom there was onus to do so have not been able to produce any credible including the required expert evidence to support their case and in fact did not even take advantage of the presence of a doctor summoned by the District Forum at their instance to prove that there was any case of medical negligence. In our view, the State Commission erred in concluding that this was a case of medical negligence by not correctly appreciating the evidence before it.

WE, therefore, have no option but to set aside the order of the State Commission. The revision petition is dismissed accordingly with no order as to costs. Revision Petition dismissed.