VIJAY HEALTH CENTRE vs CHANDRA DAS & ORS.

This order shall decide above mentioned four first appeals. The facts are taken from first appeal No. 391 of 2010. The parties are placed in their respective positions as in the original complaint that Mrs. Chandra Das as a Complainant , M/s Chennai Willingdon Corporate Foundation is opposite party No. 1, Dr. Krishna Rao is opposite party No. 2, Vijay Health Centre is opposite party No. 3, Dr. Hariharan is opposite party No. 4 and Professor N. Rangabashyam is opposite party No. 5.

The brief facts are that the complainant, Mrs. Chandra Das, (hereinafter referred as ''the patient'') took treatment from opposite parties at different stages. On 30.9.1995, the OP-2 performed operation of patient at OP 1/hospital, it was laparoscopic adhesiolysis. During this operation, small intestine was punctured, which was not noticed by OP 2, therefore, on 2.10.1995, OP-2 performed laparotomy, corrected the leak by re-suturing, but no avail. Subsequently, the patient developed severe infection, discharge from abdominal cavity, but OP 2 did not attend. The patient was discharged on 8.10.1995, then taken to Vijaya Health Centre- OP 3, for further treatment. There, from 14 th - 21 st October, 1995 the OP-4 Dr.Hariharan, treated her, made 9 interventions to control the discharge, but the condition of complainant further deteriorated. The patient remained in OP 3/hospital for almost three months. In the mean time, the patient was sent to Dr. Bhooshanam, at Christian medical College Hospital, Vellore, (hereinafter referred as CMC Hospital), which resulted in vain. Since Dr.Bhooshanam wanted to study the patient''s aliments, taking a month''s time, therefore, the patient came back to OP-3 hospital, then she was discharged from OP 3/Hospital on 30.1.1996, who in turn, returned to Madras and got admitted in Ramana Surgical Clinic, Madras, on 7.2.1996. There, the OP 5, Dr. N. Rangabhashyam performed operation of "Resection Anastomosis". Patient got complete cure and she was discharged on 13.3.1996. Therefore, alleging negligence committed by OPs 1 to 4, due to which the complainant was confined to bed for more than one year, she filed a complaint before the State Commission, Chennai and prayed for compensation to the tune of Rs.20 lakhs.

The State Commission allowed the complaint and directed the OP 1 and 2 to pay a sum of Rs.1,50,000/- plus Rs.5000/- as costs, and the opposite parties 3 and 4 to pay Rs.4,50,000/- with costs of Rs.5,000/- , jointly and severally, to the complainant.

Aggrieved by the order of State Commission, four first appeals were filed before this Commission. The complainant; Smt. Chandra Das filed first appeal No. 391 of 2010 for enhancement of compensation, whereas the OPs filed three separate first appeals for dismissal of complaint.

We have heard the learned counsel for the parties. The counsel for the complainant vehemently argued and reiterated the facts mentioned in the complaint whereas the counsel for OP 1 and 2 argued that the OP-2 operated the patient with proper care. There was no negligence. The patient suffered perforation due to extensive adhesions. Counsel brought our attention to several medical records and discharge summary and explained the sequence of events from 29.9.1995 till the discharge of patient i.e. 10.10.1995 from OP-1 hospital.

Learned counsel for OP 3, Ms. Ashmita Singh, vehemently argued that OP 3 is a medical center only, therefore, doesn''t maintain patient''s records. The medical records are with the concerned treating doctor. OP-3 provides infrastructure facilities, like operation theatre, nursing care, etc In the instant case also, the entire medical records were in possession of OP No. 4 i.e. Dr. Hariharan, therefore, liability cannot be fastened upon OP3.

Mr. M. Padhi, learned counsel for OP 4/Dr. Hariharan argued that the OP 4/Dr. Hariharan made almost 11 interventions during the stay at OP 3/hospital. He further submitted that, "a. On 17.10.1995 under general anaesthesia, administered by Dr. Kabir, the wound was examined in detail. (the copy of the operation notes will be produced). It was found that the loops of intestine were densely adherent to each other and to the muscular wall of the abdomen. A ragged hole was present in one of the loops. The wound was heavily infected. The loops of bowel could not be separated from each other. The hole in the intestine was brought out to the skin level for better control. The intestinal condition did not permit closure of the hole at this stage. b. On 20.10.1995 and 24.10.1995 the wound was opened under anesthesia and the abscesses which had developed were opened, pus let out of the wound, cleaned. The hole in the bowel was closed on 24.10.1995 to reduce the leakage. It was decided to leave the abdominal wound open to facilitate drainage of pus and fluids (this is called a laperostomy)."

On perusal of medical record, it revealed that, after final (9 th ) interventionon 29.1.1996, the OP 4 thought to seek a second opinion. Therefore, the patient was referred to one of his colleague, Dr. Bhooshanam at CMC Vellore, who expressed a month''s time to study and treat the complicated case. Therefore, patient was kept under observation of OP-4, there was improvement, and the fistula opening was reduced to 3 mm and discharged her from the OP-3.

In this case, the main controversy which swirls around is that, "what was the cause of intestinal perforation, after the operation of adhesiolysis conducted by OP-2 at OP 1/Hospital?" As per evidence of OP-2 and the medical record, there were extensive adhesions between the abdominal scar and loops of intestine. In our opinion, the OP 1 should have been more careful while dissecting the adhesions. In such situation, the doctor should have stopped laparoscopic adhesiolysis and shifted over to laparotomy. This view neatly dovetails with the Supreme Court authority in L.B.Joshi Vs Trimbak Bapu Godbole, AIR 169 SC 128 (1969), wherein it clearly defines the duties which a doctor owes to his patient, as under:- "A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require : (cf. Halsbury''s Laws of England 3rd ed. vol. 26 p. 17). The doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency."

The best person to know if a patient is at risk for a bowel perforation is the surgeon, who will, first hand, see if bowel or intestine was at risk for a perforation. So, if the surgeons are privy to your frail abdominal status, why do some surgeons not suspect a bowel perforation when their patient shows post-operative signs that may be suggestive of a bowel perforation? In the instant case, the OP-2 failed in his duty of care. Thus, OP-2 is liable for the negligence and in turn the OP-1 hospital is vicariously liable.

The counsel for OP-2 submitted that the patient was not conducive for an open surgery in view of the previous history of abdominal surgery resulting in poor abdominal muscles and laxity, hence Laparoscopic Adhesiolysis was decided. What was done during the laparotomy was only the closure of delayed perforation of the Ileum which is the correct management on that occasion. Post operatively, there is expected to be small oozing and mild intra peritoneal collection, after any major abdominal surgery, he put a wound drains also. The oozing and the drained fluid showed only yellow serous discharge, it was not fecal matter.OP-2 gave appropriate broad spectrum antibiotic coverage to adequately prevent peritonitis.

The counsel further submitted that, thereafter due to acute wheezing and increased intra-abdominal pressure of coughing, patient developed mild suture wound gaping and serous yellow discharge, which was regularly attended to by Dr. Jothimani, under instructions from OP- 2. During the hospital stay of patient, there was fistula, hence re-suturing was not possible. The leakage of little amount of pus from the wound, was a usual post-surgical wound healing process. The leakage was only as a result of coughing by the patient. In fact, the wound would have completely healed had the complainant followed the advice of continuous bed rest and parenteral nutrition.

The counsel further submitted that, patient was shifted from one hospital to another against the medical advice. The fact that Dr. Hariharan, OP-4 had done nine interventions to close the holes in the small intestines, clearly shows that there was (1) poor healing status of the patient (2) Immuno compromised status (3) possibility of underlying disease process in small intestine like TB, Crohn Disease etc.

We have perused the medical record maintained by Willington Hospital(OP-1). It is transpired that patient underwent laparoscopic adhesiolysis on 30.09.1995. Thereafter, post operatively, there was distention of abdomen, bowel sounds negative, and the patient was put on Ryle tube aspiration (RTA). We have noted that, on 02.10.1995, OP-2 performed laparotomy, he found, a small loop of intestine, was perforated about 1 cm, it was repaired with continuing suturing with vicryl 2. Post operatively, the patient had spikes of temperature and one episode of bronchial asthma which was treated with Salbutamol nebuliser and oxygen, but till 08.10.1995, the patient complained of abdominal pain and also there was leak from the abdominal wound. Thereafter, patient had gone to Vijaya Health Center. At this juncture, it is pertinent to note about, the condition of patient on 10.10.1995 i.e. during admission in the OP-3-Vijaya Hospital, as follows: The patient received in hospital and seen on 9.10.95 with infected Laparotomy wound discharging fecal matter. She had been operated upon in another hospital. Laparotomy was done and it was found that the patient had a perforated small bowel attached to anterior abdominal wall surrounded by abscess cavities. Repeated draining and peritoneal toileting was done. The patient was on TPN delivered through a central venous catheter.

The fistulous opening was closed at subsequent sessions but unsuccessfully. It was closed again on 18.1.996 in two layers and leak was noticed on 28.1.1996. It was reclosed again on 29.1.1996. Patient is still on TPN The problems were discussed with Prof. Bhushanam of CMC Hospital/Vellore and with the patient and her husband.

She is being transferred to CMC Hospital/Vellore with all the documents for further treatment.

It is very alarming to note that, nothing is recorded in the case sheet at OP-1, about operative notes. It is just noted that, " the patient was prepared and consent was taken. The patient returned from operation theatre at 5.10 p.m." Thus, it appears to be concealment made by OP-2. Whereas, OP-1 and 2 in their written submissions stated that, "during laparotomy only closure of delayed perforated of ileum was done and it was correct management." It is also important that, after laparotomy on 2.10.1995, till 08.10.1995, patient was treated by anti-inflammatory, analgesics like Fortwin and Pethedin also. Therefore, it clearly goes to show that patient had severe abdominal pain, also there was distension of abdomen.

Therefore, in our view, the OP-3 received the patient having already intestinal perforation, took place at OP-1 which was treated by the OP-2, but there was no avail. The evidence of OP-3 hospital, and the OP-4 Dr.Hariharn revealed almost 11 interventions done before the patient had gone to Madras. No doubt, after failure of entire attempts, OP-4 decided to take second opinion from CMC Vellore; but it was a wrong and delayed decision of OP-4.

Why OP-4 delayed to perform Resection Anastomosis? He would have performed resection anastomosis at after one or two surgical interventions. Thus, it was delayed decision of OP-4 and also there was delay in referring a patient to Vellore. Therefore, the principle of "Res Ipsa Loquitor" is applicable in this case. The OP-2 and OP-4 failed in their duty of care, hence both are liable. The OP-3 hospital has not maintained any medical records about treatment given by OP-4; therefore consequently the hospitals OP-1 and OP-3 are also vicariously liable in the instant case.

The counsel for OP-2 relied upon judgments of Hon''ble Supreme Court in the cases, namely Martin F. D''Souza versus Mohd. Ishfaq I(2009) CPJ 32 (SC), Achutrao haribhau Khodwa & Ors. State of Maharashtra & Ors. (1996) 2 SCC 634, Kusum Sharma vs. Batra Hospital 2010 SC 98 (Civil Appeal No. 1385 of 2001, decided on 10.2.2010), but in our view, these cases do not support the OPs contention.

We are of considered view that, total Rs.600000/- compensation granted by State Commission to the complainant is just and proper, but in our opinion the OPs 1 to 4 are equally liable for the negligence in the instant case. Therefore, on the basis of forgoing discussion, we dismiss all four first appeals and modify the order passed by State Commission as below: The OP-1 to 4 are directed to pay compensation of Rs.600,000/- jointly and severally to the complainant, with interest @ 6% per annum from the date ordered by the State Commission . The OP-1 to 4 shall pay cost of litigation Rs.20,000/- jointly and severally to the complainant, within 90 days from the date of receipt of this order, otherwise it will carry further interest @ 9% pa till its realization. Report for the compliance by 28 August 2015.