NEW INDIA ASSURANCE CO LTD vs Pawan Kumar And Co

1.THIS complaint is filed by Complainant No.1, P.B. Rao, who is the husband and Complainant Nos. 2 to 4, Sanjay Rao Pejavar, Suman Babu and Ashwin Pejavar are the children of deceased Smt. Nirmala Rao alleging medical negligence and deficiency in service by the O.Ps. 1 to 6. Facts of the case are :

IN the second week of January 1996 late Smt. Nirmala Rao accompanied by her husband, Complainant No. 1 consulted opposite party No.1 Dr. Sundar, Nephrologist, Karnataka Nephrology & Transplant Institute, Lakeside Medical Centre and Hospital (hereinafter called as KNTI), in relation to kidney complaint. O.P. 1 diagnosed her to be suffering from Non -Olyguric Renal failure. O.P. No. 1 recommended that Smt. Nirmala Rao undergo a fistula operation at the O.P. No. 5 Institute preparatory to dialysis. She underwent fistula operation at O.P. 5 KNTI. This operation was conducted by a team of doctors O.P.1, O.P.2 - Dr. Ajith K. Huilgol, Transplant Surgeon, KNTI, O.P. No. 3 Dr. Karunagaran S. Ganeshan, Transplant Surgeon, and follow up was done by O.P. 4 Dr. Sreenivasa Prasad, RMO of KNTI (O.P.5). After conducting fistula operation, O.P. No. 1 suggested that Smt. Nirmala Rao should be put on dialysis twice a week at the KNTI. It is suggested by O.P. No. 1 that it is better that Smt. Nirmala Rao undergoes kidney transplant operation so as to avoid the inconvenience of regular dialysis. It has been agreed upon by both the parties to conduct the kidney transplant operation and consideration of Rs. 80,000/ - was agreed upon. The Complainant paid Rs. 50,000/ - by demand draft and cash of Rs. 30,000/ - to the opposite parties. Smt. Nirmala Rao was admitted to O.P. No. 6 hospital, Lakeside Medical Centre and Hospital on April 29, 1996. Kidney transplant operation was performed on Smt. Nirmala Rao on 30.4.1996 by O.P. Nos. 1 to 4. She was shifted to ICU and Complainant No. 1 was informed that the operation was successful. On May 4, 1996 she was shifted to pay ward from ICU as per the direction of O.P. Nos. 1 to 4. On that very night she began to complain of severe pain and weakness. She passed little urine and her stomach began to bloat. She complained that she could barely move her hands and feet.

OPPOSITE Party No. 4, RMO Dr. Sreenivasa Prasad visited her and insisted on exercising her by walking the patient in the corridor. Her condition did not improve.

COMPLAINANT No. 1 and other relatives requested the Duty Nurse to contact O.P. 4, Dr. Sundar to attend to her immediately. The Duty Nurse refused to do the same on the plea that O.P. No. 4 had instructed not to disturb him at home. By the morning of May 5, 1996 the patient became extremely weak. The duty doctor from the General Wing of O.P. No. Inserted a catheter which did not yield any result and then he administered lassex tablet stating that O.P. No. 1 Dr. Sundar had instructed him to do so. O.P. No. 1 visited the patient later and informed that she could be discharged in a week and she would be all right. O.P. No. 1 advised that the patient should undergo a Doppler test to ascertain the functioning of the kidney on 5.5.1996. It is stated by the Complainant that he did not know the risk that the patient would be undertaking having Doppler test to be done at Dr. Sreenivasa Ultra Scanning Centre about 12 kms. away and to reach through the rush of the traffic of Bangalore city. Since Doppler test facility was unavailable with O.P. No. 5 and O.P. No. 6 the patient had to carry the catheter in a private car and wait endlessly to reach her turn. It is alleged by the Complainant that the opposite parties had not taken minimum care even to seek prior appointment for her at the centre to avoid long waiting period considering her recent surgery and the fact that she was being administered immunosuppressants. It is also alleged that the condition of Mrs. Rao at the post -operative stage, the O.Ps ought to have taken enough precautions to avoid any possible infection during travelling/waiting that could complicate the condition of the patient. 6. After returning from the Scanning Centre, O.P. 1 advised her on the same day to take another test viz. Isotope Test in Manipal Hospital, Bangalore. It is alleged that this facility again was not available in the premises of O.P. Nos. 5 & 6 Institute. Mrs. Raos transportation had to be managed by the family again and she reached Manipal Hospital at 1.45 p.m. Ambulance and attendant facility was not given to her for these tests by the OPs. She was made to wait until 3 Oclock suffering pain and discomfort of waiting.

AS soon as she returned from Manipal Hosptial on 6.5.1996, O.P. No. 1 informed the Complainant and asked for his consent that an emergency operation is needed on his diagnosis that there was no blood flow into the newly transplanted kidney. Constrained by the gravity of the situation brought out by the aforesaid events and no other alternative consent was given by the Complainant. O.P. No. 2, Chief Transplant Surgeon, informed the Complainant after the operation that he had a visual examination of the new kidney and was convinced that the said kidney was healthy and functioning. He further mentioned that there had been a minor bleeding from a hole in the artery near the suture made during the transplant operation.

SMT . Raos condition deteriorated after the operation in the ICU. Her urine output progressively receded from 3.05 litre to 1.08, 1 litre etc. and urea and creatinin levels progressively increased. O.P. No. 1 assured the Complainant that her condition was only the result of an Acute Tubular Necrosis (ATN) a situation caused by trauma to the kidney due to internal bleeding and that she would return to normal situation within a day or two. A Doppler test was directed to be conducted again and it was done on 9.5.1996 and the test indicated that the blood velocity was low and the patient was in serious condition. In this situation of patient being in a serious condition, O.P. Nos. 1 to 3 left Bangalore to Bangladesh for a prefixed medical programme on 10.5.1996. The Learned Counsel for the Complainant alleged that the opposite parties could have served the life of the patient by removing the new kidney which by that time had become dead and after putting the patient on dialysis. Opp. Parties No. 1 to 3 did not want to take the responsibility although they knew the new kidney was not functioning. It is the Complainant who requested O.P. No. 4 the RMO to do something seeing her deteriorating condition. Main ground that has been taken is that as no diagnostic facilities were available with O.Ps. 5 & 6 it resulted in extreme hardship to travel and wait at these Scanning Centres for the patient. The hospital of this nature which is undertaking kidney transplantation ought to have such facility within the institution. The patient was seriously compromised to travel without adequate medical attention from one test centre to another in Bangalore city in different occasions and twice on the 6th day of transplant operation. The patient on immunosuppressants and holding her catheter bag and standing in queue is exposed to infection.

THE second ground the Complainants have taken is that there was breach of duty and care by O.P. No. 2 and his team during the transplant operation on 30.4.1996 and also the second one on 6.5.1996. The internal bleeding was allowed till 6.5.1996 and the graft kidney was starved of blood. Thirdly, that such leaks in the artery were repaired without doing biopsy test which is admittedly accepted ''gold standard test'' of graft kidney disfunction and that it is negligence. Fourthly, that Doctor committed breach of duty in the post -operative management by ignoring the indications of admitted parameters; such as progressively increasing creatinine and urea levels far beyond the acceptable safe standards. As a team, all the Doctors, O.Ps, 1 to 3 left to Bangladesh on 10.5.1996 leaving the patient unattended. Fifthly, the Nephrologists Dr. Phadke who was brought in after the departure of O.Ps. 1 to 3 who was not competent to carry out even the ''gold standard biopsy test'' to ascertain her condition and allowed deterioration of her condition which lead to septicemia.

SIXTHLY , it is further contended that the patients health deteriorated and on O.P. No. 4s suggestion, she was again subjected to another Doppler test at Dr. Sreenivasa Scanning Centre on 11.5.1996 for which once again no help was given by O.Ps. for her transport etc. Her creatinin and urea levels increased; there was odema all over the body. A Pediatric Nephrologist was finally brought to see her and on his recommendation she underwent dialysis on 15, 16 and 17 onwards. Lastly, from May 16th, 1996 onwards she began having continuous fever, became delirious and critical. She passed away on May 26, 1996 due to total apathy of O.Ps. Pursuant to a lawyers notice dated 9.7.1996 given by the Complainant claiming a total amount of Rs. 22 lakhs a reply was received on 9.7.1996 by O.Ps. denying their neglect and consequent liability. The Complainant filed this present complaint claiming Rs. 22 lakhs with interest @18% for deficiency of service and medical negligence by O.Ps. and the details are given as under: Part -I Total consideration paid by Complainant No.1 for the treatment of his wife, late Smt. Nirmala Rao Rs. 80,000.00 Total expenditure incurred in connection with the treatment of Smt. Nirmala Rao by opposite party Nos. 1 to 6 as evidenced by Annexure A (Colly) documents Rs. 20,236.10 Funeral expenses including religious rites Rs. 1,294.00 Sub total of Part I Rs.1,01,530.10 Part II Compensation for shock, pain and suffering undergone by late Smt. Nirmala Rao owing to the deficiency in service rendered by the opposite parties. Rs.4,00,000.00 (a) Compensation for loss of consortium caused and occasioned by the deficiency in service on the part of the opposite parties 1 to 6 to Complainant No. 1 -husband of late Smt. Nirmala Rao Rs.4,00,000.00 (b) Compensation for loss of love and affection caused and occasioned by the deficiency in service on the part of the opposite parties 1 to 6 to Complainant Nos. 2 and 3 children of late Smt. Nirmala Rao Rs.4,00,000.00 Compensation for wilful and negligent acts of omission and commission committed by the opposite parties 1 to 6 which caused and occasioned the sub -total of Part II Rs. 9,00,000.00 Grand total of Parts I and II Rs.22,01,530.10

AS against this, the opposite parties contended that the patient Mrs. Nirmala Rao was diagnosed for chronic renal failure which in itself is an indication of the very fragile and delicate condition of her health. The opposite parties submitted that for the Doppler test she was asked to go for a transplant evaluation as Dr. Ram Murthy Sreenivasa Scan Centre is a renowned authority in the field of Doppler Ultrasonographic for renal transplantation and hence it was felt that his opinion was important. It is stated that necessary instructions were given to the patient during her travel from the hospital to the Scanning Centre after evaluating her condition that she was fit to travel. Dr. Ajit Hooligul, opposite party No. 2 in his affidavit submitted that he had briefed Dr. Ram Murthy well in advance about the condition of the patient and also of her visit to the Scanning Centre in order to prevent unnecessary delay.

AS regards her condition to travel, Learned Counsel for O.P. No. 2 submitted that although the patient was being administered ''immunosuppressants'' and explained that all transplant patients are immunosuppressants for life and they are susceptible to infection throughout their life. In the present case she was fit to travel since the report was inconclusive and other sophisticated tests ''Isotope tests'' were advised at Manipal Hospital. Both the tests were conducted on the same day and the reports were analyzed in the evening and immediately the O.Ps. took a decision to operate the patient based on the findings of this test. The contention of the Complainant that no prior arrangements were made at this Scanning Centre and Manipal Hospital was denied and O.P. No. 2 in his affidavit referred to his discussion with Dr. Ramamurthy and Dr. Ghosh who conducted these tests and that these were baseless allegations made by the Complainant. The allegation of the Complainant that they had to arrange a car each time is also baseless and as the ambulance facility was always there which was offered but the Complainant preferred to transport the patient by his own car. Regarding the allegation that in the post -operative care of the patient the opposite parties did not remove the kidney though it was warranted due to lack of blood flow after the second operation, it is submitted that if there was no blood flow to the transplanted kidney it was required to explore the cause of stoppage of blood flow by a second operation. O.P. No. 2 submitted that during the second operation it was found that there was blood flow to the transplanted kidney and the sutures put during the first operation were in tact. The surgery revealed that the kidney was a viable kidney and could be salvaged. There was a minor bleeding from the hole in the artery near the suture which was repaired. The allegation that the bleeding was on account of the suture and in such situation the kidney would not have function for as long as five days till 5.9.1996. It is submitted that when the patient was taken to the ICU it was diagnosed that there was a possibility of ATN. It is the situation which can last for a period of 2 to 6 weeks. It is also known that ATN can result after a decrease in the blood flow in the kidney. The only management during this situation is ''wait and watch'' or in other words ''masterly inactivity''. During the ATN it is submitted that dialysis is required which is done as and when needed. The condition of the patient improved and her urine output level was also not unusual considering the patient who had undergone kidney transplant operation.

THE patient was put in charge of Dr. Phadke who was an expert in kidney transplantation. The opposite party Nos. 1, 2 & 3 left to Bangladesh after making sure that the patient would be taken care in charge of Dr. Phadke. Although it is alleged by the Complainant that O.Ps. left the patient and went away to Bangladesh without proper post -operative care, it is submitted that Dr. Phadke is a head of Nephrology in M.S. Ramiyya Institute of Nephrology and an eminent doctor. It is pointed out that the patient was in good health upto 5.5.1996 and the record shows that she was stable after the operation on 6.5.1996 and the condition was stable on 6th, 7th, 8th, 9th and 10th. Her condition was normal according to the medical records. The indication of ATN has been considered by the doctors and as it is a well known complication in transplantation of kidney as per the medical text books. The only management during this situation is to wait and watch and continue conservative treatment which was done.

AS regards the allegation that biopsy was not done which could give a correct picture about the kidney it is contended that biopsy cannot always differentiate ATN, rejection and toxicity as any of them can cause drop in urine output and increase in creatinine. These are all medical complications and there was no clinical suspicion of infected graft and hence a third operation was not indicated. Considering the fact that patient was having hypertension for 16 years and non -functioning of kidney is due to ATN, Dr. Phadke put the patient on dialysis so that her life could be saved. It is also argued that there was no clinical suspicion of infected graft as diagnosed by Dr. Phadke. It is argued that proper degree of skill and care as per prescribed medical standards was done in the operation and the post -operative care. It is clearly a case of kidney non -functioning due to ATN. Biopsy test is required to be done to find out whether the kidney was rejected or infected whereas in this case the kidney transplantation has been successful and there was no question of rejection at that stage and all the doctors concurred on this diagnosis. It is averred that need for doing Biopsy test did not arise as kidney looked good on physical inspection. We heard both the parties and gone through the record carefully. The allegation of the Complainant regarding facilitating transportation of the patient to the Scanning Centres that the O.Ps. did not make this facility available has no basis. The cross -examination of O.P. No. 2 clearly states that ambulance services are available in O.P. 6s hospital and were offered. It is by choice the Complainant took the patient by car. Regarding waiting endlessly each time at the Scanning Centre, it is totally denied by O.P. No. 2. In his affidavit and cross -examination he affirmed that he had explained and discussed the patients condition in detail with both experts Dr. Ramamurthy and Dr. Ghosh who conducted these tests. These tests were very important to assess the functioning of the kidney. We agree with the submission. In the year 1996, these tests were not available in all the hospitals unlike at present when these facilities are more common. If these tests are crucial indicators in assessment of kidney transplant operations and all such patients are subjected to them as common practice, we cannot find fault with the Doctors for prescribing them.

IN fact it would be deemed to be negligence if the Doctors did not suggest these tests. O.P. No. 2 ruled out the complainants allegation that the patient was prone to infections while travelling and waiting for these tests and that is how she could have been infected. According to O.P. No. 2 all the Immunosuppressed patients who underwent kidney transplantation such as Mrs. Rao underwent the above tests which are as good as mandatory and are required for further evaluation of functioning of kidney and treatment according to O.P. No. 2. Dr. Ramamurthy and Dr. Ghosh who conducted these tests were apprised of the condition of the patient and it is denied by O.P. No. 2 and these specialists that the patient was made to wait endlessly and there is no evidence of this allegation. We find there is no force in the above allegation made by the Complainant as conducting these tests are done in the normal practice and discomfort arising out of waiting cannot be construed as negligence by Doctors.

IT is alleged by the Complainant that opposite parties committed breach of duty in post -operative management and treatment of Nirmala Rao that the transplanted kidney was not functioning and this indicated the internal bleeding at the site of first operation and that a biopsy test was not carried out which would have given the correct picture of the condition of the patient and that the graft kidney was left attended which led to infection resulting in septicemia. According to Bailey & Loves Short Practice of Surgery (page 106) in the post -operative care it is suggested that bleeding disorders should be excluded by ultrasound which has been done in the present case. It is as described in ''Technical complications such as bleeding from the anastomosis, vascular thrombosis and ureteric occlusion, can be rapidly excluded by a combination of ultrasonography to exclude hydronephrosis or haematoma combined with colour flow duplex to show vascular patency. If these problems are excluded, the usual diagnosis is transplant acute tubular necrosis (ATN) which is probably multifactorial in origin and may take from a few days upto 6 weeks to resolve''. In the present case acute tubular necrosis has occurred between the six weeks post -operatively and the decrease in urine output. It is also noted that deteriorating or persistently poor renal function may result from rejection or cyclosporine toxicity although ureteric and these medical complications have been managed conservatively by the opposite parties. Consistent allegations are made by the Complainant that graft nephrectomy should have been done i.e. removal of the kidney. We have gone into details of this aspect and find Bailey & Loves Short Practice of Surgery under surgical complications after renal transplantation it is clearly given in a table where there is a complication after renal transplantation not functioning after duplex ultrasonography Isotope renography the treatment would be Nephrectomy. But in the present case the patient never had arterial thrombosis for the Doctors to resort to Nephrectomy (removal of kidney). This clearly shows that adequate care has been taken by opposite parties in managing the patient conservatively and resorting to wait and watch conservative treatment. Opposite parties submitted that according to Harrisons Principles of Internal Medicines - Thirteenth Edition (Annexure -E) ''When renal function has been good initially, a rise in the serum creatinine level and a decrease in the creatinine clearance is the most sensitive and reliable indicator of possible rejection and may be the only sign...........The major toxic effect of azathioprine is bone marrow suppression, while cyclosporine has no marrow effects. They both may predispose to unusual opportunistic infections, however. The signs and symptoms of infection may be masked and distorted, and fever without obvious cause is common. Only after days or weeks will it become apparent that it has a viral or fungal origin. Bacterial infections are most common during the first month after transplantation.'' Mrs. Rao has been given cyclospoinic and azathioprinic to predispose any unusual infection. It is submitted by the opposite parties that according to American Jurisprudence Proof of Facts Second Series Volume 44 (Annexure -F) ''A biopsy should not be done in a patient who is uncooperative, or has a bleeding disorder (for example, from a decreased platelet count), severe uncontrolled hypertension, active kidney infection, polycystic kidney disease, or a solitary kidney.'' Considering the patient has been having hypertension for 15 years as per the record given by the patient herself, opposite parties felt that it was not done and secondly all these tests are informative specially Isotope scan which has been done is useful to know regarding rejection. Although it is submitted by the Complainant that in Encyclopedia Brittanica it is suggested that Azathioprine which is to be used has been completely dismissed by the opposite parties in the present day management as the only main drug to be used in kidney transplantation. Cyclosporine is the main drug which is being used since 1987 even in India also and they have given it to the patient. Opposite parties submission is that what has been alleged by the Complainant is based on an old school of thought. In the present case, we find that a successful transplant was performed by opposite parties and patient was well for several days. It was only one day prior to discharge the patient developed ATN which has been interpreted on the Doppler and on Isotope scans as showing decrease blood flow of the kidney. It is based on these findings of the tests, the opposite parties re -explored the operated site. From the record it is clear that the kidney appeared externally to be normal, old clots and other tissue debris were attempted to be removed so as to see the sutured site. When some bleeding was seen during this procedure it was controlled and there was no arterial thrombosis and no graft rupture seen at that stage. According to Handbook of Kidney Transplantation, Fourth Edition ''Transplant Operation and Its Surgical Complications: Post Operative bleeding seldom arises from the vascular anastomoses.....Graft Thrombosis: The early variety of thrombosis is most often a reflection of surgical technique; the later variety is most often associated with acute rejection.''

IT is also known that in the medical profession there is difference of opinion and difference of practice based on the medical Text Books and the latest medical technology. It is also important to note that the reference of special medical text for Nephrology and Transplant Surgery by Sir Peter J. Morris, ''The commonest form of immunological rejection in the early post transplant period is acute cellular rejection, mediated predominantly by host lymphocytes responding to the allogeneic donor kidney. Acute rejection typically occurs 5 to 7 days posttransplant, but it can occur at virtually any time after this. The highest incidence of acute rejection is within the first 3 months, and overall rates of rejection vary from 10 to 50% within the first 6 months depending on HLA matching and the immunosuppressive protocol.'' The kidney was salvaged and opposite parties continuously tried their best to save the life of the deceased and we do not find negligence or error on the part of the opposite parties in treatment.

IT is unfortunate that the patient died despite all the medical treatment and care given by the opposite parties. O.P. Nos. 1 to 3 going to Bangladesh cannot be made a ground for claiming medical negligence. From the record it is clear that ample care has been taken by O.P. Nos. 1 to 3 during the kidney transplantation and also in post -operative care till they left for Bangladesh. It was known to the Complainant that these doctors were not going to be available during the period till they left to Bangladesh the patient was recuperating well. Doctors submission is that they would have stayed back had these complications arisen before the departure time. After re -exploration they found that the kidney was in good condition. Necessary instructions have been given to O.P. No. 4 and Dr. Phadke, whose expertise has been established by his credentials placed on record and by his experience. A mere statement that he specialized in Pediatric Nephrology does not hold ground as it is only an additional speciality and does not mean that he was not capable of handling post -operative care of the patient. It is a known fact that kidney transplantation is a high risk operation and in the present case it is clear that there is no negligence in the surgery of kidney transplantation and post -operative care. Although it is unfortunate that the patient died, no sufficient grounds for deficiency in service and negligence are proved against the opposite parties. With the above discussion the complaint is dismissed. There is no order as to costs.