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Judgment
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M. Shreesha, J
Aggrieved by the order dated 11.02.2010, passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short "the State Commission"), the Complainants preferred this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act"). By the impugned order, the State Commission has allowed the Appeal preferred by first and second Opposite Party (hereinafter referred to as "the treating Doctors") and set aside the order of the District Consumer Forum Disputes Redressal Forum, Sivagangai (in short "the District Forum) in OP/10/2003, thereby dismissing the Complaint.
The facts in brief are that on 14.05.1999, the first Complainant's wife (hereinafter referred to as "the Patient") and who was also being treated by the treating Doctors consulted them for bleeding through vagina and was prescribed some medicines. On 21.07.1999, an ultrasound examination was done as per the advice of the treating Doctors, which revealed a bulky uterus. On 29.08.1999, when the Patient was suffering from serious stomach ache and oozing of the blood, she was admitted as inpatient and after pre-investigative tests were done, she was operated for removal of uterus (Total Abdominal Hysterectomy) on 02.09.1999. It is averred that on 03.09.1999 at around 4 a.m. less than 24 hours after the conduction of the operation, the Patient developed breathing difficulty and sweating. At 4:30 a.m. Doctors discussed the case and decided to perform a Laparatomy and at 10.45 a.m., she was taken to the operation theatre for the conduction of the second operation. At around 1.45 p.m. the Patient was taken to the post operative ward and no bleeding was reported. It is pleaded that at around 12 noon on 04.09.1999, the Patient developed breathing difficulty and was put on sedation and at around 10.30 p.m. her condition deteriorated and at around 9 p.m. the breathing problem worsened. On 05.09.1999 at 10 a.m. the treating Doctors did not take proper steps in immediately shifting the Patient to a higher management centre and on the same day, i.e. 05.09.1999, the Patient died of cardiac arrest. It is averred that it is only because of negligence of the treating Doctor that the Patient died due to excessive bleeding.
The treating Doctors filed their Written Version stating that all care and caution was taken; a USG was conducted on 21.07.1999, which showed a bulky uterus and it is averred that on 30.08.1999, the second Opposite Party requested the first Opposite Party to help her in the surgery of removal of uterus to be performed on 02.09.1999. As the hemoglobin level was low on 31.08.1999, blood was transfused to the Patient; anesthesia was given and the surgery was performed by the treating Doctors. Even during surgery, one bottle blood was given and the Patient remained conscious. Thereafter the treating Doctors observed that the Patient was suffering from abdominal distension and pain and considered it necessary to conduct a Laparatomy to know whether there was any internal bleed and commenced the Laparatomy in the morning. During surgery, four bottles of blood was given to the Patient. Thereafter on 04.09.1999 symptoms of Tachyphoea and Tachycardia was observed in the Patient and immediately oxygen was given. One more bottle of blood was given on 05.09.1999, when the Patient suffered from breathing difficulty. It is pleaded by the treating Doctors that the Patient died of Disseminated Intravascular Coagulation (hereinafter referred to as "DIC") and Adult Respiratory Distress Syndrome.
It is averred by the treating Doctors that the Adult Respiratory Distress Syndrome is a serious disease in the lungs and Disseminated Intravascular Coagulation (DIC) is a challenge to the surgeon and cannot be controlled at all times. It was averred that the treating Doctors have done their best and taken all care and caution to save the Patient, but despite best care the Patient developed DIC which is a serious post operative complication and died.
The third Opposite Party filed her Written Version stating that she had never treated the inpatient and never assisted in the surgery and therefore no negligence can be attributed to her.
The fourth Opposite Party, Anesthetists filed his Written Version stating that all pre-investigative tests were done with respect to anesthesia prior to the conduction of the surgery; in the spinal cord there was a scar establishing that previously the Patient was given anesthesia during her delivery; the Patient was suffering from Hemiplegia; she was certified to be fit for surgery; she was also examined on 30.08.1999 by Dr. M. Chandrekar, who is a general physician and the ECG was normal. No post operative complications were on account of aneathesia and therefore no negligence can be attributed to him.
The District Forum based on the evidence and the pleadings put forwarded has allowed the Complaint in part directing the Opposite Parties 1 & 2 i.e. treating Doctors to pay compensation of Rs.50,000/- to the first Complainant, Rs.1,00,000/- to each of the third and fourth Complainant together with interest@ 9% p.a. from the date of filing of the Complaint till the date of realization together with costs of Rs.1,000/-.
On an Appeal preferred by the treating Doctors, the State Commission has allowed the same and set aside the order of the District Forum observing as follows:
"38. The learned counsel for the complainants/ respondents urged that as per the medical records, there was no bleeding after TAH from 2.999 at 7.00 a.m. onwards till 5.30 a.m. on 3.9.99 and therefore, there would not have any necessity, to perform re-laparatomy and the very fact, the first and second opposite parties have decided to perform the said surgery, would suggest that the first surgery was not proper or the second surgery was unnecessary which alone caused DIC and in this view, they should be squarely responsible as if they had committed negligence or they have not followed the standard treatment prescribed. It is not the case of the opposite parties that there was external bleeding and in order to control the same, second surgery was performed as seen from para 12 of the Written Version, it is the specific case of the opposite parties, that the cause of bleeding per vagina after the first surgery in the patient was Disseminated Intravascular Coagulation (DIC), which is an inherent risk, associated with the surgical procedures, and on the occurrence of which, the doctors attending on the patient had no control and in this view, to stop the bleeding caused by DIC, the second surgery was performed. The bleeding may be internal, as well external. The doctors did clinical examination, which revealed there was symptoms indicating of internal blooding. Since it was not oozing per vagina externally, as noted in the case records, it is said "No bleeding" that does not mean the patient had not hemorrhage at all, and in fact the patient had internal hemorrhage, and on suspicion to rule out the possibility, re-laparatomy performed. Therefore, the indication in the medical records that there was no bleeding externally per vagina will not lead us to conclude, that the patient had not hemorrhage at all, and therefore the second surgery was unwarranted.
As per the records available, the second surgery had not created any problem while surgery was in progress and only after surgery, that too, after stabilization, on 5.9.99, the patient reported breathing problem, sweating etc., which was suspected as Adult Respiratory Distress Syndrome or Pul. Embolism, for which also, they have consulted Meenakshi Mission Hospital at Madurai, who advised to shift the patient, which is also admitted by the complainants. At 3.00 p.m. when the patient became restless, severely dyspnoeic and the idea to shift to Meenakshi Mission Hospital was withheld, and subsequently the condition become worse, because of Tachypnoea and tachycardia. They have also adopted all methods including idubated and ventilated, but there was no improvement. When the patient was gasping at 4.30 p.m., cardio pulmonary resuscitation also done, and in spite of all resuscitation efforts, the doctors were unable to revive the patient since DIC with pulmonary resuscitative over took the doctors effects, resulting the end of the patient.
By going through the documents entirety, carefully, as well as the literature pointed by the learned counsel for the appellants and applying the dictum of Supreme Court, we are of the considered opinion, that at no point of time, the doctors have violated any of the standard protocol, whereas, they took all possible effective steps, as prudent, diligent as well as skillful doctors, to save the patient, but their efforts ended in vain, which could not be equviated, as negligence as described by the complainants, which was unfortunately accepted by the District Forum. The steps taken by the Doctors also comes within the parameters, laid down by the Apex Court, thereby, relieving, them from the alleged professional negligence and therefore making them liable for the death is impossible. For these reasons, the appeal deserves to be accepted, erasing the findings of the District Forum."
Learned Counsel appearing for the treating Doctors vehemently contended that DIC i.e. Disseminated Intravascular Coagulation is a serious complication associated with such surgeries and the Laparatomy was conducted only to diagnose the problem and arrest the same.
Heard the Petitioners present here in person. The Complainants submitted that there were no ventilator facilities in the Hospital and had there been a ventilator there would have been a better chance of shifting the Patient to another Hospital; that the treating Doctors did not conduct complete blood tests prior to the surgery; that the second operation was done only to hide the failure of the first operation; that no expert advice was taken or arrangements made for getting the Patient treated in another Hospital and only because of their negligence the Patient had died.
The brief point that falls for consideration here is whether there is any negligence on behalf of the treating Doctors in the conduction of Total Abdominal Hysterectomy (TAH), in conduction of Laparatomy and in post operative care. We have perused the material on record and do not find any evidence to establish that there was any negligence on behalf of the treating Doctors in conduction of the Total Abdominal Hysterectomy(TAH). The decision to perform the TAH was taken only after seeing the result of USG examination done on 21.07.1999, which showed a bulky uterus. It is an admitted fact that the Patient was complaining of bleeding from the vagina. The operation notes and the treatment record shows that on 03.09.1999 within 24 hours of the conduction of the operation at around 4 a.m. in the morning both the treating Doctors were present and observed distension of the abdomen in the Patient immediately at 4.30 a.m. decided to perform a Laparatomy. The Hon'ble Supreme Court in a catena of judgments has stated that merely because a Patient dies, it cannot be construed to be on account of negligence of the Doctors unless it is established that the Doctors have not adhered to standards of normal medical parlance.
In 1969, the Supreme Court in the case of Dr. LaxmanBalakrishna Joshi v. Dr.TrimbakBabuGodbole AIR 1969 SC 128 held:-
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose,
he owes a duty of care in deciding whether to undertake the case,
he owes a duty of care in deciding what treatment to give and,
he owes a duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.
This means that when a medical professional, who possesses a certain degree of skill and knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care, and knowledge.
Failure to act in accordance with the medical standards in vogue and failure to exercise due care and diligence are generally deemed to constitute medical negligence.
The Hon'ble Supreme Court in Malay Kumar Ganguly v. Dr.Sukumar Mukherjee,(2009) 9 SCC 221, case has preferred Bolitho test to Bolam test. The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decision also says that the court should take into account patient's legitimate expectations from the hospital or the concerned specialist doctor.
(Emphasis Supplied)
In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a 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 cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.
(Emphasis Supplied)
From the aforenoted judgments, it is clear that the principle laid down by the Hon'ble Supreme Court is that the negligence can be attributed to the treating Doctors only if they have not exhibited skills of 'reasonable care' in treating the Patient. In the instant case the record shows that within 24 hours, when the Patient's abdomen showed distension, the treating Doctors at 4.30 a.m. have taken a decision and performed a Laparatomy to assess the bleed. The progress notes also shows that when the Patient's hemoglobin level has fallen, the treating Doctors have taken the right measures regarding transfusion of blood. It is not the case of the Complainants that the cause of death was not on account of DIC. The operation notes also shows that the platelet counts has fallen and that there was excessive bleeding. The standard protocol of transfusion of blood and steps taken to arrest the breathing difficulty has been adhered to by the treating Doctors. The case sheet shows that she was under continuous monitoring in the ICU under senior consultants and the resident doctors. On 05.09.1999, the Patient continued to have Tachyphoea and Tachycardia and one pint of blood was given. Even, in the afternoon of 05.09.1999, it is an admitted fact that the treating Doctors consulted Dr. Ramesh Ardhanari of Meenakshi Mission Hospital, Madurai. But by 4.30 p.m., she developed cardiac arrest and expired.
The material on record evidences that the contention of the Complainants that no proper steps were taken to make arrangement for shifting the Patient to another Hospital or that no expert advice was taken, is unsustainable. It is also seen from the record that the complete blood picture, USG, ECG and the X-rays were taken prior to the surgery and therefore the stand of the Complainants that the Opposite Parties did not conduct proper investigative tests cannot be sustained. Lastly, the argument of the Complainants that there were no ventilator facilities in the Hospital and had the Patient been on ventilator there were chances of survival also cannot be sustained in the light of the fact that the surgery took place in the year 1999, almost 20 years ago in a Medical Centre at Karaikudi and not in any city. Be that as it may, at that point of time not all Hospitals or Medical Centers were equipped with ventilators.
Medical literature also evidences that the Disseminated Intravascular Coagulation (DIC) is a post operative complication which cannot be controlled at all times and the mortality rate is very high. In this context what has to be seen is whether the treating Doctors had adhered to normal standards of medical parlance or not. For all the aforenoted reasons, we are satisfied that due care and caution was exhibited by the treating Doctors and there is no negligence on their behalf. The conduction of the surgery, the performance of Laparatomy together with the post operative care was as per standards of normal medical parlance as laid down by the Hon'ble Supreme Court, therefore, we are of the considered view that there is no illegality or infirmity in the order of the State Commission and hold that the District Forum has erred in observing that there was negligence on behalf of the treating Doctors.
On a suggestion from the Bench, today, the Learned Counsel on instructions, submitted that the treating Doctors, as a goodwill gesture, have agreed to pay an amount of Rs.2,00,000/- to the Complainants within eight weeks from today. We appreciate this gesture on behalf of the treating Doctors.
This Revision Petition is accordingly dismissed, no order as to costs.