LAXMIBAI vs B R KAPPALGUDDI KAPPALGUDDI NURSING HOME GOKAK

THE medical ethics require that before conducting any procedure the consent of the patient is to be obtained and the consequences of the procedure such as effects, unwanted side effects, likely complications during and after the surgery are required to be explained to the patient. But in the case on hand, consent of the patient was not obtained. We have also seen that in cases of medical treatment, case sheet and other records are not properly maintained by the hospitals. This itself amounts to "deficiency in Service". Hospitals in their own interest should maintain case sheets in each and every case which should contain each and every step of treatment. We have also come across cases alleging tampering of case sheets at a later date. Hospitals should issue computer-typed case sheets and Discharge Summaries to patients at the time of discharge and obtain their signatures. This will not give scope for tampering of entries in the hospital records at a later date and such documents will also enable the Courts while examining cases relating to medical negligence.

FOR the sake of clarity, the parties in this order are referred to according to their position in the complaint filed before the District Forum. This appeal is by the complainants challenging the order dated 29. 3. 2006 passed by the District Consumer Forum, Belgaum, in Complaint No. 30/1998, by which the District Forum has dismissed their complaint.

This is the second round of litigation. In the first instance, the complaint filed by the complainants was allowed by the District Forum by order dated 8. 10. 1998 granting compensation in favour of the complainants. This order was challenged by opposite party (for short, "o. P. ") No. 1 in Appeal No. 856/1998 before this Commission. The said appeal was allowed and the matter was remanded to the District Forum to reconsider the matter. After remand the matter was again taken up by the District Forum after affording opportunity to the parties to adduce evidence and after hearing the parties. The District Forum has passed the impugned order dismissing the complaint of the complainants. This order is under challenge in this appeal.

THE facts of the case in brief are as under: complainant No. 1 is the wife of one late Kashinath Mathapati (for short, the "patient"), and complainant Nos. 2 to 7 are their children. The patient approached O. P. 1 on a complaint of stomach pain. O. P. 1 on examination advised him to undergo an operation of "appendicectomy". Accordingly, the patient was admitted to O. P. 1 Hospital on 16. 9. 1997 and on 20. 9. 1997 O. P. 1 performed the operation. Thereafter, as the patient developed complications such as high volume of blood urea and S. creatitine, haematemisis and haematuria, he was advised to get himself admitted to O. P. 2 hospital. In the said hospital the patient died on 25. 9. 1997. According to the complainants, the death of the patient was because of the fact that O. P. 1 did not take proper care and did not conduct pre-operative laboratory investigations like complete haemogram in general and blood sugar, C. T. and B. T. in particular. The further case of the complainants is that as there was an abnormal bleeding, O. P. 1 should have taken notice of the same. But, in the instant case, no such step was taken by O. P. 1 and this ultimately led to septicemia leading to renal failure and taking away the life of the patient. The further case of the complainants is that O. P. 2 also equally liable and responsible for the death of the patient. The O. Ps. have filed their versions denying the allegations made by the complainants in their complaint. According to O. P. 1 he has taken all due care in conducting the pre-operative investigations like ultrasonography, total W. B. C. count, differential count, urine examinations, etc. , and found all parameters normal and thereafter he has conducted the operation on 20. 9. 1997 at 9. 30 a. m. As per the version filed by O. P. 1, for two days the patient was put on Intra Venous Fluids and was given sufficient routine antibiotics like ''sulbacin'' and ''gentamycin'' to prevent any post-operative infections and the patient was advised to take fluids orally and the patient was passing flatus and urine normally. But, on the fourth day, the patient developed nausea and vomitting which could have been due to paralytic ileus, which is a common reaction in all operated patients. The further case of O. P. 1 is that he did not think it necessary to do complete Haemogram, blood sugar and tests like CT-BT. The patient had no previous history of suggestive renal disorders or diabetes or any bleeding disorders. The further case of O. P. 1 is that since the blood urea serum creatinine were found to be high, the patient developed an unexpected acute renal failure and as there was no dialysis facility in the hospital, O. P. 1 advised the patient to go to O. P. 2 hospital and, accordingly, the patient was shifted to O. P. 2 hospital.

O. P. 2 has also filed the version denying all the allegations relating to negligence against it. On the rival pleadings of the parties, the District Forum has framed the following two points for consideration: (1) Whether the complainants prove the negligence and deficiency in service on the part of the O. Ps. ? (2) What Order ?

The District Forum has answered Point No. 1 in the negative and on that basis the District Forum has dismissed the complaint. This order is under challenge by the complainants in this appeal. Now the point that arises for consideration is: whether the District Forum is justified in dismissing the complaint?

THE learned Counsel appearing for the complainants submitted that O. P. 1 who conducted the procedure did not conduct the required tests before the operation. It is nextly submitted that any Doctor who conducts a procedure should obtain the consent of the patient and in the event if the patient is not in a position to give consent, the consent of the blood relative of the patient should be obtained. But, in the instant case, the consent of the patient was not obtained, even though the patient was in a position to give consent, and, therefore, in the absence of consent of the patient, O. P. 1 ought not to have conducted the procedure.

THE learned Counsel for O. P. 1 submitted that since the complainants have not taken this plea relating to consent in the complaint filed before the District Forum, it is not open for them to urge whether there was consent or not either before the District Forum or before this Commission. In the case on hand, the patient is dead. The complaint is filed by the wife and children of the patient. None of the complainants were present or accompanied the patient when he was admitted to O. P. 1 hospital. The patient approached O. P. 1 along with one Mr. Tukaram Bhimappa Badiger. As the complainants were not present at the time of admission of the patient, they may not be aware of the fact whether O. P. 1 has obtained the consent before conducting the procedure. Therefore, though they have stated in the complaint that O. P. 1 was consented for operation, there is no consent by the patient for the procedure conducted by O. P. 1. In order to examine this point, it is useful to refer to the documents relating to consent, produced before the District Forum. Exhibit D-2 is a printed form which is styled as "informed Consent". The form reads thus: "i, K. B. Mathapati, age 36, resident of Sattigeri, am giving my consent to undergo Appendicectomy Operation (procedure/operation) at my own risk by Dr. B. R. Kapilgundi. " the said printed form discloses that the Doctor has explained the information referred to in the Form to the patient. The consent form is signed by Mr. Tukaram Bhimappa Badiger. The said Mr. Tukaram Bhimappa Badiger no doubt accompanied the patient but he is in no way related to the patient. The consent Form also does not disclose that the patient had authorized the said Mr. Tukaram Bhimappa Badiger to give consent on his behalf.

As stated earlier, the first complainant is an innocent lady and she may not be aware of consent form signed by Mr. Badiger, not by the patient. Therefore, in all probability, assuming that her husband might have given his consent, the complainant might have stated that her husband has given consent for the procedure. Taking into consideration that the first complainant is an innocent lady, we have to examine whether there was a valid consent by the patient for the surgery conducted by O. P. 1. As stated earlier, the consent form was not signed by the patient. O. P. 1 in his cross-examination has stated as follows: "we have taken the consent of the patient and the signature of the patient. " if this statement of O. P. 1 is examined with the contents of the consent form it is seen that O. P. 1 has made a false statement before the District Forum to the effect that he has taken the consent of the patient and obtained his signature on the consent form. It appears when the consent form was confronted on him he volunteered and said that as I. V. was put on the right hand of the patient, the patient told him to take the signature of the said Mr. Tukaram Bhimappa Badiger, as he was his close friend. This appears to be an afterthought of O. P. 1 to get over the statement made by him earlier. Assuming that I. V. was put on the right hand of the patient it does not mean that it came in the way of the patient to put his signature on the consent form. Further, if the patient was unable to put his signature because of I. V. on the right hand, O. P. No. 1 could have obtained the Left Thumb Impression of the patient on the consent form. The medical ethics require that before conducting any procedure the consent of the patient is to be obtained and the consequences of the procedure such as effects, unwanted side effects, likely complications during and after the surgery are required to be explained to the patient. In the instant case, since the complainant has not subscribed his signature on the consent form, an inference is to be drawn that no such consent was taken by O. P. 1 before conducting the surgery. Therefore, we are of the considered view that the consent of the patient was not obtained before performing the surgery or procedure.

THE case of the complainants before the District Forum was that O. P. 1 did not take proper care and did not conduct pre-operative laboratory investigations like complete haemogram in general and blood sugar, C. T. and B. T. in particular before conducting the procedure. O. P. 1 in his version has admitted to the effect that he did not think it necessary to do complete Haemogram, blood sugar and test like CT-BT, since the patient had no previous history of suggestive renal disorder or diabetes or any bleeding disorders. In view of this admission, the point that arises for consideration is whether the above said tests were necessary before conducting the procedure. The Medical Literature speaks of the fact that for all surgeries Haemogram Test is absolutely necessary. Dr. Ashok Sangamesh Godhi who was examined as a witness on behalf of O. P. 1 has stated in his evidence that every operation requires a haemogram investigation. In the instant case, it has not been done. If a procuedure is conducted without conducting such tests, it amounts to deficiency in service and also negligence on the part of the concerned Doctor. Dr. Godhi has stated that the patient died due to operative septicemia leading to renal failure. Same is the evidence as found in the records of O. P. 2 hospital. If the patient died due to septicemia as per the evidence of the witness of O. P. 1, there was no reason for the District Forum to come to the conclusion that in the absence of post-mortem report it cannot be said that the patient died due to septicemia. The patient was admitted to O. P. 1 hospital with a complaint of stomach pain and on the advice of O. P. 1 he was admitted to O. P.-1 hospital for surgery. The patient was admitted on 16. 9. 1997 and the operation was conducted on 20. 9. 2007. The case sheet of the hospital records does not show what was the treatment given to the patient from 16. 9. 1997 to 20. 9. 1997. From this it is seen that there was no proper management, as O. P. 1 hospital itself has not maintained the records to show what day-to-day treatment was given to the patient with reference to his condition. Even according to O. P. 1 the surgery was conducted on 20. 9. 1997 at about 9. 30 a. m. But nothing is mentioned in the case sheet regarding the procedure conducted at that hour. The District Forum has held that the cause of death cannot be ascertained in the absence of post-mortem report. When the witness of O. P. 1 himself admits that the death of the patient was due to septicemia, there was no reason for the District Forum to hold that it cannot be said that the patient died due to septicemia because there was no post-mortem report. Even the hospital records of O. P. 2 hospital also speak to the effect that the death of the patient was due to septicemia. When O. P. 1 had conducted the procedure it was for him to explain why the complications developed after the procedure. In the instant case, O. P. 1 has not given any proper explanation for the complications that developed after the operation. In our view, but for the fact that there was negligence on the part of O. P. 1, there would not have been any such complications in the normal course, that too in the absence of any explanation by O. P. 1. Assuming that the surgery was conducted properly, in all probability the complications might have developed due to lack of post-operative care. The hospital records of O. P. 1 speak to the effect that there was no proper post-operative care. Therefore, we are of the view that the complainants have proved that there is a "deficiency in Service" on the part of O. P. 1. Further, the complainants have also established that there is a "negligence" on the part of O. P. 1 in conducting the procedure and in taking post-operative care.

SO far as O. P. 2 is concerned, no doubt the complainants have alleged negligence in their complaint. But the complainants have not produced any evidence so as to establish negligence on the part of O. P. 2. When the patient was brought to O. P. 2 hospital, the condition of the patient was so critical and in spite of transmission of blood in O. P. 2 hospital the patient died due to the complications developed subsequent to the operation conducted in O. P. 1 hospital. Therefore, the complaint of the complainants insofar as O. P. 2 is concerned, is liable to be dismissed. The complainants have claimed compensation of Rs. 5,00,000. The patient was aged 36 years at the time of his death. According to the complainants, the patient was doing business and was earning about Rs. 5,000 per month. But in support of this contention no evidence has been produced by the complainants before the District Forum. It appears during the pendency of the proceedings before the District Forum O. P. 1 has paid certain amount on the execution side. Taking all these facts into consideration, we are of the view that awarding a sum of Rs. 1,00,000 as global compensation in favour of the complainants would meet the ends of justice. Some of the children of the patient are minors. Therefore, out of the compensation of Rs. 1,00,000 a sum of Rs. 75,000 is directed to be deposited in favour of the minor children in a Nationalized Bank till they attain majority. In the result, we pass the following order: (1) The appeal is allowed. The impugned order is set aside. (2) The complaint filed by the complainants before the District Forum as against O. P. 1 is allowed in part with a direction to O. P. 1 to pay Rs. 1,00,000 (Rupees one lakh only) as compensation to the complainants with interest at 6% per annum from the date of the complaint filed before the District Forum till realization. (3) In the event if O. P. 1 has already paid any amount to the complainants during the pendency of these proceedings, the same may be adjusted towards the amount payable by O. P. 1 as directed above. (4) The complaint of the complainants as against O. P. 2 is dismissed. (5) O. P. 1 is also directed to pay Rs. 5,000 to the complainants towards the cost of these proceedings. (6) Complainant No. 1 on receipt of Rs. 1,00,000 shall deposit a sum of Rs. 75,000 in the name of the minor children in a Nationalized Bank till they attain majority. However, she may withdraw the interest on the said sum for bringing up the children.

BEFORE concluding this Order, we would like to emphasize on the State Government about the need to lay down guidelines for hospitals. In one of our decisions we had impressed upon the State Government to prescribe guidelines as to the facilities to be provided by private hospitals. But till now no guidelines appear to have been framed. It has been appearing in a section of Press that the Government is planning to lay down guidelines. We hope the Government will take the matter seriously and lay down effective guidelines for both private and Government hospitals as expeditiously as possible in the interest of general public. The views expressed by us in the first para of this order may also be incorporated in the guidelines.

OFFICE is directed to send a copy of this order to the Chief Secretary to Government of Karnataka for issuing necessary directions to the concerned. Appeal allowed.