M Arunachala Vadivel vs N Gopalakrishnan

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainants are the children of late M. Palaniammal who was working as a teacher in the Panchayat Union School at Mettumullikulam village in Srivilliputhur Taluk. The said Palaniammal had a Thyroid swelling on her neck. She consulted Dr. K. Kannan of Madurai who after taking Thyroid Scan, Thyriod aspirated Fluid Test and Harmone Assayed Test recommended surgery. The patient met the opposite party who is a Surgeon at Rajapalayam on 21.7.91 and showed all the reports and the opinion of Dr. Kannan. The opposite party suggested immediate surgery that day itself and a sum of Rs. 2,000/ - was paid as deposit. Blood test and Urine test were taken in the laboratory attached to the opposite partys clinic. Injections were also given. At about 3.45 p.m. on 21.7.91 the patient Palaniammal was taken to the Operation theatre. No letter of consent was obtained from the complainants. In the theatre along with the opposite party his wife, the anesthetist Dr. Sundar Rajan and Nurse Geetha were present. One Kumudha who is employed as a nurse with a private doctor and who is known to the complainants was also admitted into the theatre. The complainants were informed at about 5 p.m. that the operation was over and that the patient would regain consciousness within half an hour, but even at 6.30 p.m. she did not regain consciousness. Several injections were, purchased by the complainants and handed over. Till 9.30 p.m. the patient did not regain consciousness. The opposite party then contacted Dr. Ramasubramania Raja of Rajapalayam who came to this hospital and examined the patient whom he found, had died much earlier. According to the complainants the death of their mother was due to the negligence of the opposite party. The opposite party was in a hurry for removing the body from the clinic. He gave a Death Certificate and the body was taken away. On 24.7.91, the opposite party was contacted and asked whether he had made a report to the Municipality. He then gave a certificate with the remark that the death was due to post -operative complication following Thyroid Surgery probably due to cerebral stroke. The opposite party did not also give the full details of treatment and other particulars. Hence this complaint claiming damages in the sum of Rs. 7,13,280/ - on various grounds. The opposite party has filed a detailed counter. According to him the deceased Palaniammal was referred to him by Dr. Rajagopalan having his clinic at West Car Street, Srivilliputhur and she came to the opposite partys clinic for consultation on 11.7.91 with a reference from Dr. Rajagopalan. She had been examined earlier by Dr. Kannan of Madurai who diagnosed her case as one of Adenoma Thyroid after various tests including ultra -sonography, Radio immuno assay and needle biopsy. The opposite party examined her clinically and the reports of Dr. Kannan and confirmed that it was a case of Adenoma Thyroid. The patient agreed for surgery and informed the opposite party that she was working as a teacher and would take leave and come for admission a week later. It is therefore denied that the patient met him for the first time only on 21.7.91. The patient according to the opposite party came again on 21.7.91 and was admitted at 10 a.m. The basic blood investigations, Urine test etc., were taken and recorded and the operation was fixed in the evening. Dr. Sunder Rajan, anesthetist was also informed. He arrived at 3.30 p.m. examined the patient in detail, ECG was taken and the patient was found to be normal. The patient was given calmpose and glycopyrollate injections at 3.45 p.m. and taken to the theatre at 4 p.m. The opposite party instructed his theatre assistant to get declaration form from the next of kin. It is not true that the opposite partys wife was present in the operation theatre. Alongwith him his theatre assistant, staff nurse and one Mrs. Kumudha and anesthetist were also present. The anesthetise chose to give controlled anesthesia which is the best and safest form of anesthesia available today. The operation commenced at4.15.p.m and went on smoothly. It is submitted that the theatre maintained by the opposite party is well equipped to do any major surgery and to deal with any emergency. It is further pointed out that the opposite party has got a brilliant academic record and has done several major operations and also Thyroidectomy operation during the last 9 years. He took proper care of the patient, investigated her case thoroughly, took all preoperative care in the matter. There was no problem in doing Hemithyroidectomy. The wound was closed with a drainage tube. There was no bleeding and there was no slightest indication for blood replacement. After the surgery the first complainant was informed that the surgery was successful and the Thyroid swelling was removed easily. There was no fail in Blood Pressure during the 45 minutes of surgery. At the end of the surgery the patient picked up spontaneous breathing and her breathing was normal. But when they were reversing the patient from anesthesia, it was noticed that she was not becoming conscious in the regular time which is usually takes 10 to 15 minutes in a controlled anesthesia. The complainants and their relatives were immediately informed. As the patient did not regain consciousness, other vital parameters were checked and were found to be within normal limits. Her Blood Pressure was 130/80 ruling out any cardiac problem. The anesthelist took EGG and declared normal. Her respiration though spontaneous was inadequate and hence he was given Oxygen through mask. She was retained in the operation theatre for further management. The opposite party diagnosed the cause for the non -recovery as due to massive cercbro vascular accident with unfarction of brain and cerebral cedema. And Oedema measures namely manitol, lasix and massive doses of steroid were started. Thereafter urine output though scanty initially picked upto 300 ml. Till 9. p.m. Her blood pressure maintained at 110/80 till 9 p.m. and only after 9 p.m. she became critical. Her blood pressure started coming down and vasopressor was used to maintain it. Since the patient was going critical, the opposite party decided to take the expert opinion of Dr. Ramasubramania Raja M.D. and asked him to come to his theatre. Dr. Ramasubramania Raja arrived at 10. p.m., examined the patient and he was also of the opinion that this state could be cerebro vascular accident and this can be either Thrombosis or Haemorrhage. It is not true that Dr. Ramasubramania Raja informed the complainant that the patient was dead long before his arrival. Inspite of the best and knowledgeable efforts put by the operating team, the patient expired at 11 p.m. The first complainant was informed of the same by the opposite party immediately after the death of the patient. The complainants and other relatives became emotional and started assaulting the opposite party and the staff. The opposite party wanted to inform the Police and insisted on post -mortem examination, but the complainants without informing the opposite party took away the body. According to the opposite party he was not negligent at any time from the date the patient came for consulation to the time of death. He had taken due care. He is not liable, if by any reason of some peculiarity in the frame of constitution of the patient, which was not reasonably to be anticipated, a treatment which in the ordinary circumstances would be sound has produced unforseen results. The opposite party cannot be held negligent simply because the risks inherent in the operation actually took place. The complainant is not therefore entitled to any relief and the compensation claimed is also denied and disputed.

PWS 1 and 2 and RW1 have been examined. Exhibits A1 to A13 and B1 to B7 are marked.

THE points that airse for consideration are : 1. Whether there has been any deficiency of service or negligence on the part of the opposite party? 2. what relief, if any, are the complainants entitled? Point No. 1: The mother of the complainants Mrs. Palaniammal who belonged to Srivilliputhur and who was employed as a School teacher was suffering from Adenoma of Thyroid. She was examined by Dr. K. Kannan, of Madurai and various tests were done by him. His reports are Exhibits A1 to A4 Mrs. Palaniammal subsequently consulted Dr. Rajagopalan of Srivilliputhur who referred her to the opposite party who is a General Surgeon at Rajapalayam for surgery under Exhibit B1. The patient was admitted in the hospital of the opposite party on 21.7.91 and surgery was done that evening. After surgery the said Palaniammal did not regain consciousness and some time later died in the theatre itself. It is the allegation of the complainants that the death of their mother was due to rashness and negligence on the part of the opposite party. Strongly refuting this allegation, it is contended by the opposite party that he had taken all necessary care and caution and successfully completed the operation. But thereafter she did not revive and died due to Gerebro vascular Accident like cerebral thrombosis, thrombo -embolism or haemorrhage due to reasons unforseen and unforceable.

MEDICAL Negligence is defined as want of reasonable degree of care and skill or wilful negligence on the part of the medical practitioners in the treatment of a patient with whom a relationship of professional attendant is established so as to lead to his bodily injury or permanent disability or loss of life. As pointed out by this Commission in a very recent decision rendered in R. Gopinath v. Eskaycee Medical Foundation and Another (O.P. 199/91 dated 10.4.92), the law on the subject is very considerate to medical profession. In Hatcher v. Black (Lancet 154 2 880), Lord Danniel opined that the jury must not find a Doctor negligent simply because one of the risks inherent in an operation actually took place or because as a matter of opinion he made an error of judgment. They should find him guilty only when he had fallen short of reasonable medical care. Similarly Lord Justice Deaning observed that we should be doing a disservice to the community at large, if we were to impose liability on hospitals and doctors for every thing that happens to go wrong ¦ ¦ ¦. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure. (Roe v. Ministry of Health) (1954 (2) All.E.R 131) Mr. Justice Barrie in Moore v. Lewi -sham Group HMC (1959) observed that ''when there are two genuinely responsible schools of thought about the management of a clinical situation, the Courts could do no great disservice to the community or the advancement of medical science than to place the hall -mark of the legality upon one form of treatment.'' As observed by Lord Nathan in his Medical Negligence, a mistaken diagnosis is not necessarily a negligent diagnosis. In Mitchel v. Dicksen (1954 AP PD 519), Innes, ACJ observed, ''no human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of the deceased condition. A practitioner can only be liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the practitioner''. A reference to some of the decided authorities would explain the legal position better. In Wood v. Thurston (1953 (1) CLC 6871) a drunken man was brought to the casuality ward of a hospital with a history of having been run over by a motor lorry, with 18 broken ribs, a fractured collar -bone and badly congested lung. The surgeon did not examine him as closely as the case required and had even failed to use his stethoscope which could have enabled him to discover the patients true condition. Added to that, he permitted the patient to return home who after a few hours died. The surgeon was found negligent in failing to make a proper diagnosis. Another typical instance of negligence in diagnosis is Edler v. Greenwich & Deptford Hospital, (1953 The Times March 7) where a child complained of severe abdominal pain and vomiting. On being asked by the doctor where the pain was, she indicated generally her stomach and winced when the right side of the abdomen was palpated. The doctor failed to diagnose appendicitis, the existence of which the circumstances clearly indicated. He was rightly held negligent in failing to exercise proper care and diagnosis. Now -a -days where injection therapy has become so common, there may arise many situations in which a doctor may find himself guilty of negligence. He may, for instance, inject a wrong solution by mistake or oversight. He may inject the fluid into artery instead of into a vein or use a solution intended to be injected intramascular as one intravenous, or break the needle in the body of the patient. Any one of these mistakes may result in disaster to the patient, and there can be no two opinions as to the civil liability of the practitioner for the consequences (Kameswararaos Law of Negligence (1991 -Edition page 709). The case Antonny v. Grey (1936 (1) All.ER 540) may be taken as an illustration of the type of cases where an injection was given at a wrong place, that is, into an artery instead of into a vein, or into a vein instead of into the muscle. There a patient succeeded in an action for negligence against a medical man who was treating him for malaria by giving quinine injections in the buttocks. On one occasion in giving the injection he travelled beyond the safe area for injection and injured the patients sciatic nerve, with the result that the patient was prematurely lamed. Again, in a case reported in the British Medical Journal (dt. 27.3.1954, page 767 (Peters v. Fulham) where the complaint was that thiopentone had been injected into an artery, the hospital authorities admitted the negligence. In Collins v. Hertfordshire County Council (1947 (1) All.ER 633) a patient while undergoing an operation was killed by an injection of cocaine which was given by the operating surgeon in the mistaken belief that it was procaine. The operation surgeon had ordered procaine on the telephone, but the resident house surgeon had misheard ''procaine'' as ''cocaine'' and had told the pharmacist to dispense a mixture which was in fact lethal. The mixture prepared by the pharmacist according to instructions was administered by the operating surgeon without checking. It was held that the operating surgeon was liable in negligence. The responsibility of the surgeon for things done or left undone in the operation theatre has been the subject -matter of consideration in what are known as ''swab cases'' and '' ''Forceps cases''. Leaving behind the ''Swab'' and ''Forceps'' in the body of the patient at the end of an abdominal operation is a real and grave danger and the liability of the surgeon for negligence, has never been in doubt. In Urry v. Bierer (1955 The Times 16th March), a 10 inch square pack was left in the patients abdomen after a caesarian operation. The operating surgeon did not take any special precautions to guard against the possibility of a pack being overlooked, but relied entirely upon the sisters count. Lord Pierson held that the surgeon was negligent. In a Canadian case Gloning v. Miller (1954 IDLR 372), the surgeon was found negligent when a pair of forceps was left behind in the patients abdomen after a caesarian operation. It is thus well settled that negligence can be attributed to a surgeon only if his mistakes are of such a nature as to imply absence of reasonable care and skill on his part. It is also equally well settled that the burden of establishing negligence is on the complainant. He has not only to establish negligence on the part of the medical practitioner, but also the proximate casual connection between the alleged negligence and injury, (vide AIR 1984 SC 1570). In the light of these judicial pronouncements we shall now discuss the facts of this case.

THE first contention advanced on behalf of the complainant is that the patient Palaniammal met the opposite party only on 21.7.91 and the opposite party after scanning through the report of Dr. Kannan of Madurai immediately decided upon surgery on that day itself without proper medical examination. The death of the patient is thus attributed to hastiness on his part. On the contrary it is contended by the opposite party that the patient met him on 11.7.91 itself with Exhibit A1 to A4 reports from Dr. Kannan and Exhibit B1 letter from Dr. G. Rajagopalan of Srivilliputhur referring the case for surgery. He then examined the patient thoroughly, agreed with the conclusion of Dr. Kannan that she was suffering from Adenoma of Thyrioid and suggested surgery. According to him the patient informed him that she had not taken leave that she would apply for leave and come again within a week. PWs 1 and 2 have themselves admitted in their evidences before the Commission that the patient had met the doctor on 11.7.91 itself. The Out -patient ticket under Exhibit B5 also shows that the opposite party has examined the patient on 11.7.91 and diagnosed as Adenoma of Thyroid left lobe for Hemithyrodectomy. Hence the case of the complainants that the patient was seen by the opposite party for the first time on 21.7.91 and he hastily decided on surgery on that very date is bereft of any truth. We shall now see whether there was any negligence on the part of the opposite party before, during or after the surgery. The patient was admitted in the hospital on 21.7.91 at about 10 a.m. Immediately various tests were taken and recordings are as follows'': ''B.P. - HO/90 TC - 89000 (total counts) DC - P60L36E3M1 ESR - 19, 41 (1/2 Hr: 19 mm 1 Hr:41mm) Hb - 60% Urine - Alb: Nil Sugar: Nil Deposits: Nil Blood Group - A, Rh +ve Blood Urea - 17 mg %'' The patient has then been examined by Dr. Sundararajan, qualified Anesthetist at about 3 p.m. He has taken ECG and found the patient normal. He gave clearance for the surgery. The patient was then given calmpose and glycopyrollate injections at 3.45 p.m and taken into the theatre at 4 p.m. It is obvious that the necessary tests have been taken before the surgery. It is pointed out by the learned Counsel for the complainants that no blood sugar test, no cholestrol test, no fundus test have been taken before the operation. The answer thereto of the opposite party is that as there was no sugar in the urine and as there was no previous history of diabetes in the patient, he did not think it necessary to go in for a blood -sugar test. As the urine sugar was normal, there was also no need for any cholestrol test or any fundus test. We are therefore unable to hold that there was any negligence on the part of the opposite party in not taking these tests. It is then urged that haemoglobin count in the blood of the patient was only 60% and this was too low for a surgery. The opposite party as RW1 asserts that normally the percentage of haemoglobin is 50% to 60% for a woman of patients age (57) and the percentage of 60% found in the patients blood was quite sufficient for this surgery, We are told by the lady Member of this Commission who is a doctor of 30 years experience that 60% haemoglobin in the blood is not a bar for conducting a surgery. Here again we are unable to find any deficiency of service of negligence. It is finally argued that the opposite party has not taken the written consent of the patient or the relations before conducting the surgery. It is well -settled that in all cases where a treatment consists of certain dangerous instruments case, it is the duty of the medical man to take the consent of the patient preferably in writing. According to RW1, he instructed his nurse to take the consent, but she has failed to do so. Be that as it may, there is no doubt that there was the oral consent of the patient for conducting this operation. In fact in Exhibit B1, letter of reference from Dr. G. Rajagopalan dated 11.7.91, he has written as follows : ''Herewith I am referring Mrs. Palaniammal, a case of Adenoma of Thyroid willing for surgery''. The patient was all along conscious till anesthesia was administered in the operation theatre. She therefore fully knew the pre -operative injections administered and when she was taken into the theatre. Her relations were also aware of it. It is therefore futile to contend that the opposite party had not taken the consent of the patient or her relations in writing. The opposite party has taken their consent orally and it is enough, we are therefore unable to find any negligence or deficiency of service in the preparation of the patient for the surgery.

THE patient has been taken into the theatre at 4.45 p.m and general controlled anesthesia has been administered to her, by and under the direct supervison of Dr. Sundararajan, a qualified anesthetist. Though it is not alleged in the complaint, a suggestion has been thrown at RW1 that there was excess administration of anesthesia which has been promptly refuted by him. In another recent decision in Mrs. Ravannamma & Others v. M/s. Vijaya Hospital & Another (O.P. 66/91 dt. 30.7.91), this Commission had occasion to observe as follows: ''Anesthesia is not now induced by administering chloroform, but by an Endotracnel tube. In this method a tube is inserted into the wind pipe, and nitrous oxide, oxygen and halothene are pumped in measured quantities keeping a constant eye on the monitor''. In this method there is no possibility of over dose, when the patient is under constant watch. There is nothing to show that any over dose of anesthesia was administered to the patient in this case. The surgery commenced at 4.15 p.m. and ended at 5 p.m. Exhibit B6 contains the operation notes which runs as follows: ''Under General Anesthesia by controlled anesthesia with N02 gas and 02. By a collar incision the left 1 ob thyroid is exposed. There was a haemorrhagic cyst. 10 cm X 3 cm. The cyst, is easily mobilised and left hemi thyroidectormy done. After haemostasis the wound is closed with drain''. According to RW1 there was no problem and the surgery was successfully completed by 5 p.m. There is no evidence to indicate anything contra. The problem started only after the completion of the surgery.

NORMALLY when the patient is reversed from anesthesia, he becomes conscious within 10 to 15 minutes, in the case of controlled anesthesia. But this unfortunate patient did not revive. The record at 5 p.m. is as follows: 21.7.91 Operated Diaphragmatice IV Bextrose BP 140/90 Patient breathing - Injection - 5.00 p.m does not recover from anesthesia after reveral not responding to painful stimuli Mannitol 1 bottle Injection, Decadr BP: 130/90 No corneal refex Pupil: constricted sluggish 1 Viat 1V reactin to light Injection Lasix I amp. At 6.00 p.m. the position was thus : 6.00 p.m. Foley Intubation Injection (Urinary) again O2 Lasix 1 catheter Injection. Amp. 1V passed VI It 2 Urine output ECG: Amp. 1V 300ml. Normal Injection No evidence of Ischaemia or in frition infarction B1BSB12 1 Amp. 1V At 7 p.m. the position was thus: Injection 5% Dextrose On flow Decadron 20 Mg. 1V At 8.00 p.m. the position was thus: Respitation normal quiet O2 BP 100/70 R.S. (Respitation system) clear. At 9.00 p.m. the position was thus: B.P. 90/70 Injection Mephentine1/2 ce1V Urine output500 ml. It is seen from the above records that the patient did not respond to this emergent treatment and her B.P. was 90/70 at 9p.m., where the patient became critical and he lost hope. He immediately contacted Dr. Ramasubramania Raja over the phone and he arrived at the operation theatre at 10 p.m. He examined the patient and made the following remarks which is marked as Exhibit B6(a): ''General condition - Bad OIE Patient: Unconscious, pupils constricted not reacting to light. No response to painful stimuli. Pulse: 100/mt. B.P. 90/60 Respiration hurried, laboured. O2 being given by Endotracheal tube CVS : Muffled heart sounds(Cardio Vascular System) P.A. (per Amdomen): Nad (Not -AbnormalityDiagnosed) C.N.S. : Reflexes - Areflexia (Central Nervous System) C.V.A. (Cerebro Vascular Accident) (Diagnosis) Advised to continue same line of treatment.'' However the patient died at 11 p.m. A perusal of Exhibit B6 and the treatment administered to the patient after she failed to revive, show that nothing has been left undone to her. Despite this emergent treatment, the patient has collapsed. We are not able to find any deficiency or negligence in the management of this patient after the operation.

IT is alleged by the complainants that the patient died an hour or two after the operation, that RW1 the opposite party did not admit this fact or did not know that the patient was dead and that Dr. Ramasubramania Raja who came at 10 p.m. alone found that the patient had died and gave information to the relations. This is too much to believe. In fact Dr. Ramasubramania Raja has himself written Exhibit A6(b) letter wherein he has stated the condition of the patient when he visited at 10 p.m. and that he had suggested the same treatment. He denies that he told any of the relatives of the patient that she was already dead.

EXHIBIT A5 is the Death Certificate issued by RW 1 where the cause of death is mentioned as ''Post operative complication following thyroid surgery probably cerebral stroke''. It is explained by RW 1 that without a post -mortem examination, he could not come to a definite conclusion and hence he mentioned in the death certificate that death was due to probably cerebral stroke. Much is sought to be made of Exhibit A13(a) which is a xerox copy of a form said to have been signed by RW1. The date in the form is mentioned as 21.7.91; name of the patient as Palaniammal and her age as 50 and her disease as thyroid tumor. They are admittedly in the hand writing of RW1. He has also affixed his signature. Just above the signature, we find the following endorsement, (in Tamil): It is argued by the learned Counsel for the complainants that this certificate has been given by the opposite party, as if, the patient was alive. We are in the first place unable to draw any such inference. Secondly RW1 flatly denies that he gave any such certificate. We wanted the learned Counsel to summon the original, but he has not chosen to do so. We are therefore not in a position to pass any opinion of the genuineness of Exhibit A 13(a). On a conspectus of all the facts and circumstances, we hold that the complainants have failed to establish any deficiency of service or negligence on the part of the opposite party.

POINT No. 2: In view of our finding on point No. 1, the complainants are not entitled to any compensation.

IN the result the complaint fails and is dismissed. But without costs. Complaint dismissed. _