Kalpana W/O A Ramesh vs K RAMALAKSHMI , Niranjan Reddy

THE challenge in this case of alleged medical negligence is to the order passed on 30.12.2013 by the Andhra Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission) in FA No. 322/2012, "Dr. C. Niranjan Reddy versus Smt. A. Kalpana and Anr." and FA No. 323/2012, "Dr. Smt. K. Ramalakshmi versus Smt. A. Kalpana and Anr.", vide which the order passed by the District Consumer Disputes Redressal Forum I, Chittoor on 2.05.2012 in consumer complaint No. 07/2011, allowing the said complaint, was set aside and consequently, the complaint filed by the present petitioner was dismissed.

IN brief, the facts of the case as stated by the petitioner/complainant in CC No. 7/2011 are that her husband got her admitted on 02.05.2008 in the hospital of Opposite Party 1, Dr. Ramalakshmi for medical termination of pregnancy as well as tubectomy family planning operation. As stated in the complaint, the surgery was performed by OP -2 Dr. Niranjan Reddy in the said hospital on 02.05.2008 itself. However, after the surgery, the petitioner/complainant developed complications like abdominal pain, vomiting, abdominal bleeding etc. On 04.05.2008, OP -1 referred the complainant to Christian Medical College and Hospital (CMC), Vellore by giving a letter dated 04.05.2008. The complainant was admitted in the said hospital on 05.05.2008 and had to remain there for a considerable time during which she had to be admitted in the Intensive Care Unit (ICU) as well and to undergo four operations on different dates for rectifying the defects that had occurred during the surgery at the OP Hospital. The Doctors at CMC Vellore performed the operations of "LAPAROTOMY PROCEED CLOSURE TERMINAL ILEAL PERFORATION AND TOILETTING UNDER GENERAL ANESTHESIA" ''with diagnosis of "UTERINE AND TERMINAL ILEAL PERFORATION WITH FECAL PERITONITIS VOCAL CARD PALSY WITH RECURRENT ASPIRATION". After the operation, the patient was shifted for post -operative ventilation and monitoring in the ICU. Later on, some more surgeries were conducted upon her and she was finally discharged on 11.09.2008. The complainant alleged that she had spent a sum of ?15 lakh towards hospitalisation, medicine etc. and ? 1 lakh towards other expenses and ? 2 lakh towards extra nourishment. Alleging medical deficiency against the OP Doctors, the complainant filed the consumer complaint in question before the District Forum on 08.09.2010.

THE complaint was contested through the written version filed by Dr. Ramalakshmi, OP -1, in which she stated that the operation was performed upon the complainant by her and not by OP -2 Dr. Niranjan Reddy. She denied that the patient suffered complications involving vomiting, abdomen bleeding etc. after the operation. She admitted, however, that on 04.05.2008, she referred the complainant to CMC Hospital, Vellore by giving a letter dated 04.05.2008. She stated that if any patient develops complications after the tubectomy operation, he / she has to be referred to higher institutions. In this case, the OP advised the complainant to go to Government SVRR (Ruya) Hospital, Tirupati, where her problem could have been rectified free of cost. However, the complainant and her husband insisted that a referral letter should be given in favour of CMC Hospital, Vellore. The OPs provided care to the complainant at CMC Hospital, Vellore as well, and OP -2 visited CMC Hospital, Vellore several times to see the complainant and inquire about her health condition regularly. The OP -1 also stated that the complaint was barred by limitation because the date of cause of action should be taken as 02.05.2008, whereas the complaint was made on 06.09.2010, meaning thereby that it is filed beyond the expiry of two years from the cause of action. The OP -1 has further taken the plea that the tubectomy operation was conducted free of cost by the OPs in a Government recognised nursing home and hence, the complainant does not come within the definition of consumer. The District Forum Chittoor, taking into account the evidence produced by the parties, ordered that both OPs are guilty of medical negligence and are liable to pay a sum of ?14,13,100/ - to the complainant within 15 days, otherwise the said amount shall carry interest @9% p.a. Appeals were filed against the order of the District Forum by OP -1 as well as OP -2 before the State Commission. The State Commission vide impugned order accepted both the appeals and set aside the order of the District Forum. It is against this order that the present petition has been filed. The learned counsel for the petitioner/complainant stated that it was clearly made out from the facts on record that the complainant developed several complications after the procedure done at the Hospital of OPs. When she was referred by the OP Hospital to the CMC Hospital, Vellore, it was found that she had perforation in the uterus as well as in the small intestine. The testimony of Dr. Philip Joseph who performed surgery upon her at CMC Hospital, Vellore, clearly proves that the perforation was a result of the surgery done at the Hospital of OPs. The order passed by the District Forum was, therefore, in accordance with law and should have been upheld by the State Commission.

ON the other hand, learned counsel for the respondents has referred to the expert opinion given by Dr. Venkatarami Reddy, Assistant Professor, Department of Surgical Gastroenterology, S.V. Institute of Medical Sciences, Tirupati, saying that as per the said Doctor, that there was no negligence on the part of the OP Doctors. According to the learned counsel, the patient spent lot of time at CMC Hospital, Vellore and the complications that she was suffering from, would have developed during procedure at CMC Hospital, Vellore. The learned counsel further stated that the patient was given medicines for tuberculosis (TB) at CMC Hospital, Vellore, which implied that she was suffering from TB. The perforation could have happened due to typhoid fever or TB. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The basic issue involved in this case of alleged medical negligence is regarding the post -operative complications that occurred after the procedure of medical termination of pregnancy (MTP) followed by tubectomy was performed at the Hospital of the OP Doctors. It has been stated in the complaint that the surgery was done by OP -2, Doctor Niranjan Reddy. However, the said version is controverted by the written version filed by OP -1, Dr. K. Ramalakshmi, in which she has clearly admitted that the surgery was performed by her and not by Dr. Niranjan Reddy. It has been stated in the written submission filed by the respondents/OPs that on 04.05.2008, when the complainant reported complications of abdominal distension and vomiting, OP -1 Dr. K. Ramalakshmi referred the petitioner/complainant to the General surgeon, i.e., OP -2, Dr. Niranjan Reddy. The OP -2 examined the petitioner/complainant at 1:30pm on 04.05.2008 and provisionally diagnosed as ''paralytic ileus'' and advised to refer the petitioner/complainant to a higher centre. The OP -1 advised the patient to approach the Government Hospital at Tirupati, but on her request, she was referred to CMC Hospital, Vellore. It is clear from this version of the OPs that the patient developed complications while she was still there at the Hospital run by the OPs.

THE above version gets support from the fact that the letter dated 04.05.2008 referring the patient to CMC Hospital, Vellore for expert treatment states as follows:- ''''Kalpana

On 02/05/08, i.e., 2 days back MTP + Tubectomy was done under general anaesthesia.

Distension of the abdomen was noted. Bowl sounds sluggish. Complaining of pain in epigastric region.

BP 100/70 Gastritis

G.C. Good Paralytic ileus

Deodenal Perforation?

Ref to CMC Hospital, Vellore for expert treatment.''''

It is clear from the wording of the above letter that the complications as alleged in the complaint, developed during the stay of the complainant at the Hospital of the OPs.

FURTHER , the discharge summary issued by the CMC Hospital, Vellore mentions under the head Operative Findings as follows: - "1. Uterus normal size.

Small rent around 0.5 cm present at fundus towards right side.

Superficial serosal bleed present.

Bilateral tubes and ovaries normal, evidence of bilateral tubal ligation present.

Terminal ileal perforation with fecal peritonitis present.

Significant free fluid and pneumoperitnoneum.

Rest of small and large bowel inspected and found to be normal.

THE ABDOMINAL CONTENTS WERE SO DENSELY ADHERENT TO EACH OTHER AND TO THE ANTERIOR ABDOMINAL WALL THAT SEPARATING THE BOWEL LOOPS WERE VERY DIFFICULT. THERE WAS MINIMAL SEROPURULENT COLLECTION ALONG THE LEFT PARACOLIC GUTTER."

In the said discharge summary, under the heading ''Operation(s) Done'' it is stated as follows:-

"1. LAPAROTOMY PROCEED CLOSURE TERMINAL ILEAL PERFORMATION AND TOILETTING UNDER GENERAL ANESTHESIA ON 04/05/08.

LAPAROTOMY WASH OUT UNDER GENERAL ANAESTHESIA ON 22/05/08."

THE statement of Dr. Philip Joseph, who performed the surgery on the complainant at CMC Hospital, Vellore is quite significant and relevant in the present case. Dr. Philip Joseph who is working as surgeon in Department of Surgery at the CMC Hospital, Vellore stated during his testimony, that on examination, he found the patient in a critical condition. On investigation, they found that there was air in the abdomen and they felt it necessary to operate the patient to find out the cause. On operation, they found that there was small hole in the uterus and another small hole in the intestine. The operation and Laparotomy was done to close hole in the intestine and then she was shifted to the ICU. In answer to the question during his examination-in-chief before the District Forum, as to how the holes in uterus and intestine had occurred, Dr. Philip Joseph replied that they might have happened during the operation done for Tubectomy and medical termination of pregnancy. Dr. Philip Joseph further stated that if that surgery was performed with due diligence and care, there was less chance for perforation in uterus and intestine. In his cross -examination, the said Doctor stated that if a patient suffered from typhoid, he may develop perforation in intestine, but it will not cause perforation to the uterus also. Dr. Philip Joseph, however, stated that he could not say that the operation done on 02.05.2008 was involving any negligence.

DR . Venkatarami Reddy, who has been produced as an expert by the OPs is working as Assistant Professor, Department of Surgical Gastroenterology, S.V. Institute of Medical Sciences, Tirupati. He had done his DNB in surgical gastroenterology in the year 2012 only. Even in the affidavit filed by Dr. Venkatarami Reddy, it has been stated that the patient had complications on the second post -operative day. She was suspected to have bowel perforation and was referred to a higher Centre. Dr. Venkatarami Reddy, however, says that there was no negligence on the part of the surgeon as these complications are known to occur even in the best surgical hands.

FROM a perusal of the entire material on record, it is crystal clear that the complainant did suffer perforation in her uterus as well as in the intestine following the surgical procedure done by the OPs for medical termination of pregnancy and tubectomy. She was having these perforations, when she was brought to CMC Hospital, Vellore and her condition was stated to be critical at that time. There is nothing to disbelieve the version of the Doctors at CMC Hospital, Vellore that the patient indeed was suffering from acute complications and immediate surgery had to be performed upon her to close the perforation. It is a matter of common knowledge that during pregnancy, the uterus becomes delicate and any procedure involving MTP etc. has to be done very carefully. In the present case, the OP -1 Doctor is clearly guilty of negligence because the procedure done by her resulted in perforation in the uterus and then in the intestine.

THE version given by the OP Doctor that a perforation could be caused by typhoid fever or TB cannot be believed by any stretch of imagination. There is not an iota of evidence on record to say that the patient suffered from typhoid fever at any stage. Regarding the medicine given for TB, there is no mention in the Discharge Summary of CMC Hospital Vellore that she was administered such medicine. However, even if she suffered from TB, it could not have resulted in the sudden worsening of her condition following the procedure done by the OPs. The complainant did not suffer from any such complication before the said procedure was done. It can be safely stated therefore, that the perforations resulted due to the procedure done by the OP Doctors.

THE order passed by the State Commission, therefore, does not reflect a correct appreciation of the facts and circumstances on record. The impugned order also does not properly bring out the legal proposition in this regard, enunciated in a catena of judgments passed by the Hon''ble Supreme Court of India and the National Commission. The State Commission has stated that the complainant had not adduced any expert evidence in support of the allegations made against the OPs. We fail to understand if there could be any better expert evidence than the statement given by Dr. Philip Joseph wherein, he had clearly stated that the patient was found to have perforation in uterus as well as intestine and that she was in a critical condition when brought to their hospital, just two days after the surgery done by the OPs. The State Commission, however, believed the version of Dr. Venkatarami Reddy, who is a very junior level doctor having done his Post Graduation only two years back. The order passed by the State Commission is unfortunately not based on any cogent and convincing reasoning.

THE State Commission in the impugned order have quoted two landmark judgments of the Hon''ble Supreme Court given in ''Jacob Mathews vs. State of Punjab and others, 2005 6 SCC 1" and in "Kusum Sharma vs. Batra Hospital". In Jacob Mathews vs. State of Punjab and others, 2010 3 SCC 480 the Hon''ble Apex Court interalia stated as follows: - "(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ''duty'', ''breach'' and ''resulting damage''.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence..."

IT is clearly stated in the above order that there are three essential components of negligence, namely, "duty", "breach of that duty" and "resulting damage". It has also been stated in this order that as per definition given in the "Law of Torts", Ratanlal and Dhiraj Lal (24th Edition 2002, edited by Justice G.P. Singh), it has been elaborated that "duty" means a legal duty to exercise due care on the part of the party complained of towards the party complaining the former''s conduct within the scope of the duty. In so far as medical professionals are concerned, it has been stated that such professionals are to be treated with a difference, but standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. In the present case, the OP -1 Doctor while conducting the MTP caused perforation in the uterus as well as in the intestine and hence, she is guilty of medical negligence because she caused resulting damage even when exercising ordinary skills. The facts of the instant case make it clear that no previous complications were there, given the condition of the complainant.

IN "Kusum Sharma vs. Batra Hospital" it has been observed interalia as follows:- "I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field..."

FROM the above judgment also, it is very clear that the OP -1 as medical professional was expected to bring a reasonable degree of skill and knowledge and was expected to exercise a reasonable degree of care. From the damage done to the patient, it cannot be stated by any stretch of imagination that a reasonable degree of care was shown by the Doctors in treating the patient and hence, it is a clear -cut case of medical negligence on the part of the OPs.

IN a recent order made by this Commission in "OP No. 422 / 2002 "R.P. Unniyal vs. S.V. Nursing Home" on 25.08.2014, the facts of the case were almost similar when a complainant with pregnancy of 8 weeks was admitted for medical termination of pregnancy and she developed complications following the procedure performed upon her. There was post -MTP uterine perforation with multiple ileum perforation and acute peritonitis with septisimic shock. The Commission ordered to pay a compensation of Rs. 10,00,000/ - with interest @6% p.a., holding it to be a case of clear medical negligence.

IN so far as the limitation issue is concerned, it is very clear that the complainant was discharged from the CMC Hospital, Vellore on 11.09.2008. The complaint in question was filed on 06.09.2010. In case, the cause of action is taken to the 11.09.2008 when the patient was discharged from CMC Hospital Vellore, even then the complaint has been filed within two years of the cause of action. We have no reason to accept the version of the OPs that the cause of action should be taken as 02.05.2008 when surgery was performed upon the patient by the OP Doctors. The patient had to undergo a horrible time following the said surgery and a long -drawn out treatment at CMC Hospital, Vellore following the surgery by OP Doctors on 02.05.2008. It is held therefore, that the complaint is not barred by limitation.

BASED on the discussion above, it is held that the medical negligence in the present case stands fully established from the material on record. However, the order passed by the District Forum is ordered to be modified to the extent that there shall be no liability against the OP-2 Dr. Niranjan Reddy because the surgery was done by the OP -1 Dr. K. Ramalakshmi. The order passed by the State Commission is, therefore, set aside but the order passed by the District Forum is modified to the extent that the whole liability of payment of Rs. 14,13,109/- shall be discharged by OP-1, Dr. K. Ramalakshmi along with interest @9% p.a. from the date of the order passed by the District Forum, i.e., 02.05.2012. This revision petitions are disposed of accordingly with no order as to costs.