N T Subrahmanyam vs B Krishna Rao

THE present Appellant Dr. N.T. Subrahmanyam and his wife Smt. Rajalakshimi were the complainants in O.P. No. 392/93 before the State Consumer Disputes Redressal Commission, Tamil Nadu. The complaint appears to have been filed by the First Appellant Dr. N.T. Subrahmanyam but in the title of the order as well as in the order of the State Commission both the Appellants have been referred as complainants and it appears that Smt. Rajalakshimi might have been later on impleaded as co -complainant. The respondent Dr. B. Krishna Rao and Willingdon Nursing Home were the opposite party Nos. 1 and 2 respectively in the complaint. It way be mentioned herein that Smt. Rajalakshimi complainant -appellant No. 2 has since died during the pendency of this appeal. A death certificate dated 18th February, 1995 has been filed but no application has been filed for bringing on record her legal representative perhaps on the ground that her husband is already on the record as appellant No. 1. The State Commission vide order dated 16th August, 1993 dismissed the complaint filed by the complainants. Against that Order the complainants have come before this Commission by way of this appeal.

THE case of the complainants is that in the first week of March, 1992 the complainants went to stay with their son at Madras. On 5th March, 1992, Smt Rajalakshimi, complainant vomited 800 cc of blood due to bleeding from esophageal varices. The complainants hired the services of the respondents to provide her the medical treatment. She was admitted in the second opposite partys Nursing Home at Madras to be attended and treated by the first opposite party Dr. B.K. Rao. One of the consideration for preferring services of the opposite parties is said to be because on previous occasions their services were hired on the advice of Dr. E. Peda Veera Raju, M.D., D.M. Gastroenterologist of Visakhapatnam for performing of repeated endoscopic sclerotherapy for the patient with a view to obliterate the varices as Dr. Rao was a senior endoscopist. The case of the complainants is that from the moment Smt. Rajalakshimi was admitted in the said Nursing Home there was total mismanagement to the extent of virtually throwing her into the jaws of death solely because of the negligence and improper rather wrong treatment given to her by the first opposite party Dr. Rao. The complainants submitted that the slipshod, callous and negligent way in which Smt. Rajalakshimi was treated can be narrated under the following counts : 1. The 1st opposite party failed to do endoscopic sclerotherapy for the complainants wife in time but introduced Sengstaken tube with traction of 1 kg. weight for 51 hours thus causing unnecessary physical agony and torture to the patient.

The 1st opposite party infused 6 units of blood to the patient obtained from outside sources (When the complainants eldest son aged 38 years and daughter aged 35 years with same blood group and Rh type were available and were ready to donate blood to their mother), when actually so much of blood was not needed and this produced over -loading of her lungs and heart and precipitated cardiac failure (cardiac decompensation) to the patient iatrogenically, and caused serious damage to her health.

The 1st opposite party failed to visit, examine and treat the patient for 34 hours, when she was seriously ill due to estrogenically induced cardiac decompensation, and he could not be traced throughout on 8.3.92 though his services were hired for the treatment of the patient;

The 1st opposite party committed professional impropriety and dishonesty during the course of his treatment of the complainants wife, and also on previous occasions of his performing sclerotherapy for her, by falsely reporting that he injected 60 c.c. of 1% aethoxysclerol while doing sclerotherapy, when he actually used. 0/3% of aethoxyscleral.

It is the further case of the complainants that on 8th March, 1992 opposite party No. 2 was not traceable and therefore at 1.00 p.m. on that date he phoned to his class -mate and friend Dr. R.S. Rajagopalan, cardiologist of Trinity Acute Care Hospital at Madras to visit the patient and give her the necessary treatment as her condition was becoming critical. Dr. Rajagopalan came to the opposite party No. 2 Nursing Home at about 2.45 p.m. and ordered laboratory tests and X -ray and waited till the results of the tests were brought to him and instituted the necessary treatment. Smt. Rajalakshimi would have died of cardiac arrest due to low serum potassium levels if timely action had not been taken. At about 11 p.m. on 8th March, 1992 Smt. Rajalakshimi developed jaw breathing and as Dr. B.K. Rao was not traceable, Dr. Rajagopalan was again called who gave the necessary treatment at 11.30 p.m. The complainants requested Dr. Rajagoplan to take the case of Smt. Rajalakshimi at his hospital but the said Dr. Rajagopalan said that as per the medical ethics he would take the permission of Dr. B.K. Rao and then take over the case and treat her in his own hospital. On the morning of 9th March, 1992 Dr. Rajagopalan informed Dr. B.K. Rao about all that happened to Smt. Rajalakshimi on 8th March, 1992 and how he had managed the case at the request of the complainant. Dr. B.K. Rao transferred Smt. Rajalakshimi from the opposite party No. 2 Nursing Home to the hospital of Dr. Rajagopalan at about 11.00 a.m. on 9th March, 1992 in an ambulance with oxygen mask still attached. At Trinity Acute Care Hospital the complainants wife was put in I.C.C. for 4 days and properly treated for her iatrogenically induced cardiac decompensation, frequent ventricular prematurobeats and atrial tachycardia by constant monitoring and expert treatment by all the medical staff there. But for the two visits of Dr. R.S. Rajagopalan at the opposite party No. 2 Nursing Home on 8th March, 1992 Smt. Rajalakshimi would have died due to utter negligence of the 1st opposite party -Dr. Rao who did not even care to visit the patient between 8.00 p.m. on 7th March, 1992 to 6.00 a.m. on 9th March, 1992 when her condition became very serious and critical. Various other acts of negligence and deficiency of service are attributed to the 1st and 2nd opposite party which will be dealt with while discussing the case in detail.

The opposite parties have filed a joint counter controverting the various acts of negligence and deficiency of service attributed to them. According to them there was proper and efficient treatment of Smt. Rajalakshimi and there is absolutely no ground for accusing them of deficiency of service or negligence. It was further pleaded that opposite party No. 1 -Dr. B.K. Rao had extremely urgent personal matter outside Madras on 8.9.92 which had been fixed weeks in advance and therefore he had to leave the town for a day. Before leaving Madras on 8th March, 1992 he had seen the patient at 8.00 p.m. on 7th March, 1992 and the first thing he did on his return on 9th March, 1992 was to see her at 6.00 a.m. During his absence Dr. Meganathan and other doctors and nurses had continuously attended and monitored the condition of Smt. Rajalakshimi. On 9th March, 1992 the condition of the patient was not at all critical. The complainants requested the transfer of Smt. Rajalakshimi to Trinity Acute Care Hospital where her own Cardiologist Dr. R.S. Rajagopalan would be able to monitor her more conveniently. Since the first opposite party felt that the patient would be well under the care of her family physician who knew her history intimately and since she was stable enough to be shifted, the first opposite party agreed to the request of the complainants for the transfer of the patient to Dr. Rajagopalans hospital. It was denied that there was low serum potassium level or that Smt. Rajalakshimi had not developed jaw breathing though she had difficulty in breathing because the neck was in an angled position. Other allegations of the complainants were also denied.

THE complainant Dr. N.T. Subrahmanyam appeared in the witness box. Dr. Rajagopalan could not be examined by the complainants as unfortunately he has since died. Opposite Party No. 1 Dr. Rao also appeared in the witness box.

AFTER consideration of the pleadings, evidence and other documents, the State Commission came to the conclusion that the complainants have failed to establish any negligence or deficiency of service on the part of the opposite parties. Consequently the complaint was dismissed. Hence this appeal by the complainants. We have heard the complainant No. 1 who has appeared in person and gone through the records. The complainant has also filed written arguments in supplementation of his oral arguments. None has appeared for the opposite parties at the time of hearing.

BEFORE we proceed further we may give here the history of events which took place before 5th March, 1992 on which date Smt. Rajalakshimi was admitted for the last time in the opposite party No. 2 Nursing Home. She had Jaundice in July, 1989 and did not recover there - from fully. She was examined by two Gastro Entrologists at Bombay who suggested liver biopsy for her. Liver biopsy was done in 1990 at Visakhapatnam. She was found having chronic active hepatitis with active cirrhosis. She was given cartisone tablets which developed bleeding from her upper gastroentritis. Dr. E. Peda Veera Raju of Visakhapatnam did emergency endoscopy and found erosive gastritis with grade III oesophageal varices. She was managed conservatively at Visakhapatnam. According to the complainant she was maintaining fairly good health for about six months. In August 1990 she developed bleeding due to rupture of oesophageal varices and vomited blood. Dr. Veera Raju again did endoscopic sclerotheapy with 3% aethoxyselerol and she was also given two units of blood. On 31st August, 1990 she had a small ooz of blood from the mouth and endoscopic sclerotherapy was repeated. She did not have any further upper gastro bleeding. However, for further repeated sclerotherapy Dr. Veera Raju referred her to 1st opposite party Dr. B.K. Rao at Madras to obliterate the varices as Dr. Rao was a senior endoscopist. On 12th September sclerotherapy was done by Dr. Subhash at the opposite party No. 2 -Nursing Home as Dr. Rao was out of station. Sclerotherapy was repeated on 24th September, 1990, 24th November, 1990, 10th April, 1991, 12th October, 1991. Dr. Rao used to keep informed Dr. Raju at Visakhapatnam about sclerotherapy and the progress of the patient i.e. Smt, Rajalakshimi. According to the complainants Smt. Rajalakshimi did not have any upper gastroentritis bleeding after the second sclerotherapy done at Visakhapatnam. However, when she happened to be at Mardas at her sons place on 5th March, 1992 she had sudden bleeding due to oesphageal variceal rupture and she was got admitted in opposite party No. 2 -Nursing Home. It is during this stage in the second opposite partys Nursing Home various acts of deficiency of service and negligence are attributed to the opposite parties.

THE principles regarding medical negligence are well -settled. A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. It is also well -settled that when there are genuinely two responsible schools of thought about management of a clinical situation the Court could do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form or treatment. Justice Mc. Nairaitt Bolam v. Friern Hospital Management Committee (1957 (2) All.ER 118) observed as follows : ''Counsel of the plaintiffs put it in this way. That in the case of a medical man, negligence means failure to act in accordance with the standards of reasonable competent medical men at the time. That is a perfectly accurate statement as long as it is remembered that thee may be one or more perfectly proper standards and if a medical man confirms with one of those proper standards then he is not negligent.'' In the light of these principles we shall deal with this appeal.

The above judicial pronouncement has been referred because in the present case the contention of the complainant Dr. Subrahmanyam is that on the earlier occasions endoscopic sclerotherapy was done five times and opposite party No. 1 -Dr. Rao should have done endoscopic sclerotherapy on 5th March, 1992 also to stop the bleeding as there was no contrary indication for sclerotherapy to be done for Smt. Rajalakshimi as her condition got stabilised within an hour after receiving two bottles of haemacial and there was no further bleeding after admission. Bleeding from fundal varices was also ruled out as Dr. Rao in his previous endoscopic examination did not find any fundal varices. According to the complainant when at Visakhapatnam Smt. Rajalakshimi had vomited 1000 cc of blood, emergency endoscopic sclerotherapy was done for her. But instead of doing sclerotherapy opposite party No. 1 Dr. Rao on 5th March, 1992 had introduced Sengstaken tube and put traction with a weight of 1 kg. According to the complainants in such cases, the first choice of management is definitely endoscopic sclerotherapy while baloon tampanade is only the third choice. Even according to the complainant Smt. Rajalakhsimi was referred by Dr. Veera Raju in Visakhapatnam to Dr. B.K. Rao at Madras because the latter doctor is a senior and expert endoscopist. Therefore, Dr. Rao must have found out that which method of management was preferable when Smt. Rajalakshimi was admitted in Nursing Home on 5th March, 1992. Dr. Rao in his written counter has stated that he has 22 years of experience in dealing with acute cases especially those of gastroentritis bleeding upper and lower. He has also stated that at the time of admission on 5th March, 1992 the blood pressure of Smt. Rajalakshimi was only 80% and no peripheral pulses were felt and in such cases doing upper G.I. endoscopy is not safe. The very fact that earlier Smt. Rajalakshimi had been managed five times out of which four times by opposite party No 1 himself in the opposite party No. 2 Nursing Home clearly shows that the complainants were satisfied with the management of Smt. Rajalakshimi by opposite party No. 1. On those earlier occasions endoscopic sclerotherapy was done and if on 5th March, 1992 if she was in a condition for endoscopic sclerotherapy, then in our opinion Dr. Rao would have done it instead of introducing Sengstaken tube which even according to Dr. Rao is a very unpleasant procedure for the patient as it passes through the nose and pushed down to the throat into the oesophagus and through into the stomach. We are convinced that Dr. Rao had adopted this method of management on Smt. Rajalakshimi considering her condition at the time of her admission on 5th March, 1992.

THE further grievance of the complainant is that the tube was kept inflated for 51 hours inside the stomach of Smt. Rajalakshimi. Dr. Rao has mentioned that it is common practice to leave the Sengstaken tube in position after deflation as it serves two purposes, namely, it functions as a type of Rlyes tube and in the event of recurrent bleed the tube only needs to be reinflated. According to Dr. Rao Sengstaken tube was not kept inflated for 51 hours. The tube was introduced at the time of admission and was deflated at 1.45 p.m. on 6th March, 1992 i.e. 26 hours after introduction and the traction was removed. According to him the tube was kept in position in the stomach deflated only out of consideration for the patient in the probable event of gastroentritis bleeding and it was indeed fortunate for the patient that the tube was inposition as shehad repeat bleed at 9.00 p.m. on 6th March, 1992 and as the tube was already in position the oesophagel baloon was re -inflated and 9.5 kg. traction was re -applied and the tube was removed at 11.30 a.m. on 7th March, 1992. The complainant has not examined any expert to show that all this management is in a slipshod manner or there was any sort of negligence in the management of Smt. Rajalakshimi.

DR . Rao who appeared in the witness box as RW 1 has stated on oath that it was not possible to do sclerotherapy on the patient on5th March, 1992 in view of her condition and Sengstaken tube was the most proper line of management. As noticed above when there are genuinely two schools of thought about the management of clinical situation the attending doctor has to decide that which management would be best suited to the condition of the patient. Dr. Rao has a rich experience in dealing with acute cases especially of those of gastro intestinal bleed upper and lower and that is why the complainants came from Visakhapatnam to Madras on the advice of Dr. Raju for treatment by Dr. B.K. Rao. Therefore if Dr. Rao thought that in the given situation Sengstaken tube was the proper management to stop bleeding then the discretion exercised by him is not liable to be challenged in a Court of law and thus there was no deficiency of service or negligence on the part of Dr. Rao. It is next contended that the 1st opposite party transfused six units of blood to Smt. Rajalakshimi when so much blood was not needed and this produced over -loading of lungs and heart and precipitated cardiac decompensation and on the evening of 7th March, 1992 she developed breathlessness which is an important manifestation of cardiac decompensation and her condition began to deteriorate throughout the night of 7th March, 1992. These allegations of cardiac decompensation have been denied by the opposite parties. Medical history of the treatment of Smt. Rajalakshimi in the opposite party No. 2 Nursing Home is on the record and the complainant has not been able to show that any of the nothings made on 7th March, 1992 or 8th March, 1992 support this allegation. As noticed above, Dr. Rao had visited the patient on the evening of 7th March, 1992 before leaving Madras on the next day. The complainant No. 1 had called Dr. Rajagopalan who is his classmate and family friend and he came at 2.45 p.m. on 8th March, 1992. If the condition of Smt. Rajalakshimi had become serious on the night of 7th March, 1992 Dr. Rajagopalan would have been called by complainant No. 1 who is himself a senior doctor either on the same night or early next morning. The advice of Dr. Rajagopalan was also recorded in the history of treatment and the notes do no show that Dr. Rajagopalan noted anything like cardiac decompensation.

THIS grievance of the complainants has been discussed in detail by the State Commission in para No. 9 of their order. We have gone through that para and in our opinion the finding of the State Commission that there was no overloading of the lungs due to transfusion of six units of blood is perfectly correct. In that para the State Commission has discussed the evidence brought on the record. The complainants allegation that at about 11.00 p.m. on 8th March, 1992 Smt. Rajalakshimi had developed jaw breathing and therefore Dr. Rajagopalan was called at 11.30 p.m. as opposite party No. 2 was not traceable on that day. As noticed above, Dr. Rajagopalan had also advised some treatment and those notes do not show that there was over - transfusion of blood and the patient suffered cardiac decompensation. On the other hand Dr. Rajagopalan had noted that the patient was flat in the bed with neck turned to one side which caused her difficulty in breathing and on adjusting the neck her breathing improved and her oxygenation was 100%. Opposite party No. 1, in his statement before the State Commission has given the various notings of HB level, blood pressure, pulse rate etc. On the basis of those readings the complainant has not been able to point out that any of those readings show cardiac decompensation. The complainants in the written arguments have tried to explain some of the notings in the history of treatment of Smt. Rajalakshimi but that explanation is of interested person. No independent expert has been examined that the notings denote cardiac decomposition. If the condition of Smt. Rajalakshimi was serious on 8th March, 1992 Dr. Rajagopalan would have given treatment of cardiac decompensation while Smt. Rajalakshimi was admitted in the opposite party No. 2 Nursing Home. No doubt Dr. Rajagopalan took Smt. Rajalakshimi to his Hospital, Trinity Acute Care Hospital on 9th March, 1992 but it cannot be said that he did so for the reason that there was over transfusion of blood and the patient suffered cardiac decompensation. The history sheet and case sheet of Smt. Rajalakshimi recorded in the Trinity Acute Care Hospital has been brought on the record but those do not give any indication that Smt. Rajalakshimi was suffering from cardiac decompensation or there was lung crepitation on account of over loading of blood. Though Dr. Rajagopalan has since died but in his hospital some other doctors and nurses must have attended Smt. Rajalakshimi while she was admitted in that hospital as admitted by the complainants in the complaint. The complainant could have examined any of them to prove his allegation about over transfusion of blood. Thus we have no hesitation in holding that there was no over transfusion of blood.

THE next grievance of the complainant is that though the complainants sons and daughter with same blood group were ready to donate blood for their mother but the opposite parties took blood from the Blood Bank and this act of their was improper. According to the statement of Dr. Rao though normally relations are asked to donate blood but in case of emergency like the present one Blood Bank was requested to supply the blood particularly when 6 units of blood were required. It is also the case of the opposite party that the blood received from the Blood Bank is already screened and could be administered directly while the blood of relations has to be screened and it is not possible in a case of emergency. Thus this grievance of the complainants is a wild one. Another grievance of the complainant is that Dr. Rao made himself scarce from the night of 7th March, 1992 till the morning of 9th March, 1992 and thus Smt. Rajalakshimi was left in the lurch. The opposite party No. 1 -Mr. Raos contention is that on account of prior engagement he had to be out of Madras City on 8th March, 1992 and in his absence Dr. Meganathan who is an Urologist and eminently qualified doctor looked after Smt. Rajalakshimi with the help of other surgeons. Dr. Meganathan is said to be holding a Masters degree in general surgeory with the super -specialisation in Urology -MCH -Urology and according to Dr. Rao he has worked with him for the last 10 years in opposite party No. 2s Nursing Home. It is the case of the. opposite parties that Dr. Meganathan is extremely well - qualified to deal with critical cases and his professional decision can be trusted to be correct. Moreover the complainants had called their friend and family doctor Dr. Rajagopalan on 8th March, 1992 and advice by him and the treatment suggested was followed in the opposite party No. 2s Nursing Home. As noticed above the case of the opposite party is that the condition of Smt. Rajalakshimi was stable on 9th March, 1992 and on the request of the complainants she was permitted to be transferred to the hospital of Dr. Rajagopalan as he would be able to monitor her more conveniently being family physician and who knew her case history intimately.

THE last grievance of the complainants is that while doing sclerotherapy the opposite party No. 1 did not use proper scleroting aethoxyselerol agent. This contention has been denied by the opposite parties. This point has been discussed by the State Commission in Para No. 12 of their Order and we do not find any ground to differ from the finding recorded by them in favour of the opposite parties. Moreover it should be noted that sclerotherapy was conducted upon Smt. Rajalakshimi on 5 occasions before 5th March, 1992. It the sclerotherapy agent of proper concentration was not used by opposite party No. 2 on those occasions it is not understood why Smt. Rajalakshimi was brought to the opposite party Nursing Home on 5 occasions for sclerotherapy and again on 5th March, 1992 when she vomited blood. This shows that the complainant No. 1 who himself is a well - qualified doctor was well -satisfied with the care taken by the opposite parties in the treatment of Smt. Rajalakshimi.

WE have gone through the records carefully and are of the opinion that the complainants have failed to prove that there was any negligence on the part of the opposite parties in the treatment of Smt. Rajalakshimi. Accordingly we confirm the order of the State Commission and dismiss the appeal with costs which we assess at Rs. 10,000/ - Appeal dismissed with costs.