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Judgment
These three appeals have been filed in this case of medical negligence, challenging the impugned order dated 19.05.2009, passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as ''State Commission'') vide which the Original Petition / Consumer Complaint No. 04/2005 filed by the complainant A.J. Mohammed Shah alias A.J. Shanavas, (appellant in FA No. 321 / 2009), against opposite party No. 1 (OP 1), i.e., Kerala Institute of Medical Science and Opposite Party No. 2 (OP 2), i.e., Dr. K.R. Vikraman was allowed and both the OPs were held liable to pay a compensation of 3,10,000/- jointly and severally to the complainant alongwith 5,000/- as litigation cost. FA No. 365 / 2009 has been filed against the impugned order by OP-1 Kerala Institute of Medical Science, while FA No. 410 / 2009 has been filed by OP-2, Dr. K. R. Vikraman against the said order..
The complainant, A.J. Mohammed Shah alias A.J. Shanavas, aged 35 years, filed the consumer complaint in question alleging that he suffered from the ailment of stones in his right kidney for which he approached the OP-1 Hospital, where the main treatment was done by OP-2, Dr. K.R. Vikraman who works as a surgeon in the Department of Urology and Video Andoscopic surgery of that hospital. It has been alleged that due to wrong treatment given by the OPs, his condition worsened from bad to worse and ultimately, his right kidney got completely damaged and had to be removed by surgery at another hospital, i.e., Kasturba Medical College and Hospital (KMC) Manipal. The complainant stated that he was a diploma holder in Civil Engineering as well as Film Technology and at his young age, he had written, produced and directed many telefilms and feature films. However, due to the negligent Act of the OPs, he had become crippled in the prime of his life and had suffered heavily on the professional front. The complainant demanded a sum of 75 lakhs from the OPs on account of medical expenses, lost hours of works and earnings, liability incurred, pain and sufferings etc. The State Commission vide impugned order, assessed the total compensation due to the complainant under various heads to be 6,20,000/-. However, the State Commission observed that the complainant had also contributed negligence for the loss of his right kidney and he was only entitled to get 50% of the aforesaid amount. Accordingly, the State Commission ordered payment of 3,10,000/- to the
complainant by both the OPs jointly and severally and also allowed 5,000/- as cost of the proceedings.
It has been stated in the consumer complaint that the complainant approached the OP-1 Hospital on 02.03.2002, considering it to be a super speciality hospital. After conducting ultrasound scan of abdomen, his ailment was diagnosed as Renal stone. He was advised treatment and discharged on 03.03.2002. Due to pain on 24.03.2002, he again approached the OP-1 Hospital where he was admitted and referred to the OP-2 for treatment. The OP-2 after seeing the X-ray report, etc. advised removal of Renal stone by scopy X URS method. The said operation was done by the OP-2 on sedation. It has been alleged that proper anaesthesia was not given at the time of operation as a result of which he felt great pain when he regained consciousness. Moreover, there was bleeding through the tube inserted in the stomach through nose. The air conditioning was also not effective. The complainant was discharged on 29.03.2002 with advice to take some drugs to reduce the pain. His pain, however, continued and became unbearable. On 08.04.2002, he was again admitted to OP-1 Hospital and it was discovered that the operation done earlier to burst the stone was not properly done and the stone splinters remained pierced in his body parts. A major operation was again conducted by OP-2 upon the complainant and he was discharged after a few days, i.e., on 22.04.2002, even though the pain did not subside. He was told by OP-2 that the pain was due to stent put up to connect right kidney with the urinary bladder. The stent is stated to be removed on 18.06.2002, but the pain continued. The complainant got himself scanned at another place on 23.10.2002 called Ittyavira Scan and Genetic Research and its report revealed that his right kidney was swelled and oedematous. The complainant met OP-2 and discussed the issue, but he was told by OP-2 that there was nothing to worry. On 14.03.2003, the complainant was again admitted in OP-1 Hospital. It was found by OP-2 that there was obstruction in the flow from the right kidney to the urinary bladder. The complainant was discharged on 15.03.2003. Since the pain in the abdomen / stomach did not subside, after various tests, video endoscopy was done upon the complainant on 18.06.2003, but even after that, he felt lot of pain. The x-ray of the urinary bladder was taken and it was found that the stent put up in the earlier operation and said to be removed by subsequent operation was lying inside the urinary bladder. On 18.08.2003, the complainant again approached the OPs when ultrasound scan of right kidney and right urinary was done and it was found that ureter was also swelled and the stent was still remaining in the bladder. The OPs advised the complainant to have a renogram and for that, they referred him to Regional Cancer Centre, Thiruvananthapuram. As the equipment at that place was out of order, the complainant went to Amrutha Institute of Medical Science, Kochi for the said test. After seeing the result of renogram, the OP-2 decided to conduct a major operation again upon the complainant. However, the father of the complainant took him to Kasturba Medical Hospital, Manipal on 10.10.2003 where the complainant was examined by a team of doctors, headed by Dr. Sasidharan. The doctors at Kasturba Medical Hospital, Manipal found that the right kidney of the complainant was completely damaged and it was beyond any repair. They advised removal of the right kidney for which surgery was performed on 16.10.2003.
The complainant has alleged that the ailment of the complainant, "Renal Stone and Stone at PUJ on the right side" was detected on examination by the OPs on 02.03.2002 itself. However, despite undergoing so many surgeries, his ailment could not be cured, rather subsequent complications developed only because of the negligent act of the OPs. The OPs had, therefore, not performed their duties with diligence, care, knowledge, skill and caution in administering the treatment. Had the OPs applied reasonable skill, care and caution, the complainant could not have suffered unnecessary surgeries which crippled his body and resulted in loss of his right kidney. The father of the complainant also died due to cardiac arrest on knowing about the removal of right kidney of the complainant. The complainant has alleged that leaving the stent coiled inside due to the negligence of OP-2 resulted in damage to his right kidney.
The complaint was resisted by the OPs by filing their written version before the State Commission. It has been stated by OP-1 Hospital that the OP-2 Doctor retired from medical service and is known for his expertise and prudence of his profession. He is not a subordinate or agent of the Hospital but is a consultant, admitting patients of his own and making use of the facilities and infrastructure of OP-1 Hospital. The OP-2 Doctor stated that the patient was admitted through emergency room of OP-1, on 02.03.2002 with severe abdominal pain and distension of abdomen. After the physical examination and investigations including ultrasound scan, it was diagnosed that the patient had a stone in the right ureter, with dilatation of right kidney and ureter. He was treated with antispasmodics and the pain subsided, so he was discharged on 03.03.2002. He was readmitted with complaints of abdominal pain and vomiting on 24.03.2002, when he was evaluated in detail with blood, urine examination, renal function test, ultrasound of urinary track including X ray of abdomen. There was evidence of ureteric calculus 9mm X 9 mm size with dilated kidney and ureter. After discussing options with the patient, ureterscopic fragmentation, which was the most suited procedure, of stone was done under anaesthesia on 25.03.2002. The stone was fragmented with lithoclast to less than 3 mm for easy discharge through urine. He was discharged on 29.03.2002 with advice to review after one week. The patient was readmitted on 08.04.2002 when the CT scan revealed dilated kidney and ureter with stone gravels in the lower end of right ureter. After discussing the matter with the patient and his father, open removal of stone fragmentation was done on 10.04.2002, after taking written informed consent. Since the lower ureter was oedematous and blood supply was inadequate, ureteric re-implantation was done with a stent in situ and the patient was discharged on 22.04.2002. The follow-up ultrasound examination was done on 20.05.2002 which showed mild dilatation of the right collecting system. The OP-2 have further stated as follows in his written version:- "Ureteric stent was removed after 2 months. Follow up ultrasound on 23.10.2002 showed dilation of the collecting system of the right kidney and also dilatation of the ureter. The patient was advised admission and detailed evaluation, but the patient was not willing."
The OP-2 has further stated in his reply that the patient was further reviewed on 10.03.2003 with an ultrasonogram done on 08.03.2003. The ultrasound showed hydronephrosis of right kidney with dilatation of the collecting system. The patient was admitted on 14.03.2003 and I.V.P. was done on 17.03.2003, and it showed right hydroureteronephrosis. He was advised surgery, but he was not willing and stated that he would come after one week. He was discharged with advice to report after one week for the necessary surgical management. However, the patient reported only on 18.06.2003 in OP-1 Hospital when the seriousness of his condition with hydroureteronephrosis was explained to him. The patient was not willing for an open surgical procedure but was willing only for endoscopic procedure. He was subjected to cystoscopy and ureterotomy and 6 F size stent was passed into right lower ureter and the rest of the stent was left coiled inside the bladder. The said procedure was done to decompress the right kidney. The patient was asked to report after 6 weeks for removal of stent or earlier. The patient was reviewed on 18.08.2003 and the stent was removed. An ultrasonogram was done on 18.08.2003 which showed right side hydroureteronephrosis. He was again advised surgery for which he was not willing. He was advised to get a renal scan done and he reported back with the said scan and was again advised surgery, but then he was completely lost to follow up (as he went to another hospital). The OP-2 Doctor has stated that he is a well-qualified professional with qualification of MCH and is a retired Professor of Urology from Medical College, Kozhikode. The OP Doctor stated that it was the accepted practice in urology to fragment a large stone into smaller pieces and leave it to be excreted in urine over a period of time. The OP-2 has further stated in his reply that the first stent was put in the ureter on 10.04.2002 alongwith ureter re-implantation. The stent was removed after two months. The second stent was put on 18.06.2003 into the right lower ureter and the rest of the stent was left coiled inside the bladder. The said stent was removed on 18.08.2003. The second stent was inserted because the patient was not willing for open surgery.
The State Commission, after examination of the entire evidence including the documents on record, reached the conclusion that there was negligence on the part of the OPs in the treatment of the patient, but the complainant was also guilty of contributory negligence as he caused delay of two months in approaching the KMC, Manipal for further treatment and proper management. The State Commission assessed the total compensation due to the complainant under various heads at Rs.6,20,000/-, which included 3 lakh for medical treatment, Rs.40,000/- as transportation expenses, Rs.30,000/- as bystander expenses, Rs.2 lakh as compensation for loss of amenities suffered by the complainant and Rs.50,000/- under the head pain and sufferings. The State Commission, however, concluded that since there was contributory negligence on the part of the complainant, he was entitled to get only 50% of the assessed amount and hence, the State Commission ordered both the OPs to pay a sum of 3,10,000/- to the complainant jointly and severally.
Both the parties led their detailed arguments at the time of hearing before us. It was averred by the learned counsel for the complainant that there were two main grounds due to which medical negligence could be attributed to the OPs. The stent which was inserted on 10.04.2002 was allowed to remain inside the body of the complainant for more than one year and it was removed on 18.08.2003 only. The version given by the OP-2 that the first stent was removed after two months of its being inserted on 10.04.02 and the second stent was inserted on 18.06.2003, was not correct. There was no medical record produced to show that the first stent was removed after two months . The learned counsel further stated that although the fragmentation of the stone was done as per the procedure performed on 25.03.2002, the parts of the stone remained inside the body of the patient, which resulted in further worsening of his condition. The learned counsel referred to the discharge summary of the patient on 03.03.2002 in which there is mention of renal calculus based on the diagnosis made upon the complainant after his first admission on 02.03.2002. However, no proper treatment was given to him despite this diagnosis, which resulted in the worsening of his condition in the subsequent days.
The learned counsel for the respondents vehemently argued that there had been no negligence shown by the OPs because they had proceeded in accordance with the established procedure and practice in dealing with such cases. He stated that it was a usual practice to attempt fragmentation of stones in the first instance and then give the fragments a chance to pass through urine. He referred to the discharge summary dated 22.04.2002 showing that no stones were left inside the body of the complainant after the procedure done during his admission from 08.04.2002 to 22.04.2002. Learned counsel further stated that in the report of ultrasound examination done on 10.08.2002 and 23.10.2002 at Ittyavira Scan and Genetic Research, there is no mention of any stent which makes it clear that the stent must have been removed. The learned counsel, however, admitted that there was no record to substantiate the contention that the first stent was removed in June 2002. Referring to the discharge summary from OP-1 Hospital during the admission of the patient from 18.06.2003 to 23.06.2003, the learned counsel stated that a second stent was inserted on 18.06.2003 which was subsequently removed on 18.08.2003.
The basic issue involved in the case is whether OP-1 Hospital and OP-2 Doctor have shown negligence in the treatment of the complainant for his ailment involving renal stone that led to the subsequent removal of his right kidney. It is clearly made out from the facts and circumstances of the case that the complainant made several visits to the OPs and he also remained admitted in OP-1 Hospital on a number of occasions. The complainant was admitted in the Hospital from 02.03.2002 to 03.03.2002, then from 08.04.2002 to 22.04.2002, then from 14.03.2003 to 15.03.2003 and then from 18.06.2003 to 23.06.2003. Thereafter, he was admitted in KMH, Manipal also where his right kidney was removed. The OP-1 Hospital is stated to be a super speciality hospital and OP-2 Doctor is stated to be a well-qualified urologist, capable of handling such cases. It is clear from the material on record that at the very first instance, i.e., during admission from 02.03.2002 to 03.03.2002, the ultrasound scan done by Dr. V.N. Ratnakumari, Radiologist at OP-1 Hospital revealed the presence of 2 stones in the right kidney of the complainant. There was a stone of 12 mm size in the Pelvi-Ureteric Junction (PUJ) and one stone of 6 mm size in the middle calyx. The discharge summary of the Hospital also mentions about renal calculus and a review in the urology OPD as follow-up appointment. It has, however, been stated in the written version of both the OPs that although the complainant was diagnosed to have a stone in the right ureter with dilatation of right kidney and ureter, he was treated with antispasmodics only and discharged on 03.03.2002, because the pain subsided. However, the complainant had to come again to OPs on 24.03.2002 because he was suffering from acute pain. The OPs have stated that after detailed evaluation of the patient, there was evidence of ureteric calculus 9mm X 9 mm with dilated kidney and ureter and hence after discussion with patient, ureteroscopic fragmentation was done which was the most suited procedure. It has, however, not been explained why the patient was discharged on 03.03.2002 without any effective treatment, when the ultrasound examination had revealed two stones inside the body of the complainant.
It has been stated in the complaint that even at the time of discharge on 29.03.2002 after stone fragmentation, the patient was suffering from pain. He was told by the doctors that drugs had been given to subside the pain, but the severity of pain continued even after taking the medicine. When the pain became unbearable, the complainant again went to the OP-1 Hospital on 08.04.2002 where again he was admitted and it was stated that the fragments of the stone remained inside his body. The said facts stand admitted from the version given by the OPs in which it has been stated that CT scan of abdomen revealed dilated kidney and ureter with a stone seen in the lower end of the ureter. The OP-2 has stated in his version in FA No. 410 / 2009 that open surgery for removal of stone fragmentation was done on 10.04.2002. Since the lower ureter of the patient was oedematous and blood supply was inadequate, the OP-2 Doctor conducted a ureteric reimplantation which involved a stent to be put in the urinary bladder to connect the right kidney with the urinary bladder. The patient was discharged on 22.04.2002. A follow-up ultrasound examination was done on 20.05.2002 which showed mild dilatation of the collecting system of the right kidney. It is made out from these facts that just after about 10 days of being discharged from OP-1 Hospital on 29.03.2002, the complainant had to be readmitted in the said hospital on 08.04.2002. Further, within a span of a fortnight only, open surgery had to be performed upon him and a stent implanted, meaning thereby that the earlier procedure done did not meet with any success and there was no improvement in the condition of the patient and he was never relieved of his pain and subsequent agony. The management of the patient even till this juncture, casts serious doubts as to whether the OP-2 handled the patient with proper care and attention from medical point of view.
The issue whether the stent inserted in the body of the patient on 10.04.2002 was removed after a period of 2 months or was not removed at all, is not clear from the facts and circumstances on record. It has been stated by the OP-2 Doctor that the said stent was removed after a period of 2 months, but there is no medical record involving the removal of said stent. The doctor has not given any specific date also on which the said stent was removed. During the course of arguments before us, the learned counsel for the OPs stated that since in the ultrasound examinations done on 10.08.2002 and 23.10.2002, there was no mention of any stent, the said stent must have been removed before that. When asked to explain whether the said stent was removed by the OP-2 Doctor or not, the learned counsel did say that the stent was removed on 18.06.2002, but he admitted clearly that there was no record to substantiate this version. The complainant has stated in his complaint that the stent put up in the earlier operation and said to be removed by the subsequent operation was lying inside the urinary bladder in coiled state. The OP-2 Doctor has, however, stated that he inserted a second stent in the body of the complainant on 18.06.2003 into the right lower ureter and the rest of the stent was left coiled inside the bladder. From the facts available on record, it is made out that since there is no medical record to show whether the stent inserted on 10.04.2002 was removed or not, the entire issue involving the removal of stent is shrouded in suspicious circumstances. Since the complainant remained under the treatment of the OPs for a considerable time during all this period, the OPs are obliged to explain clearly as to whether the first stent was practically removed or not and to produce evidence on that account.
It may further be stated that in FA No. 410 / 2009 filed by OP-2 Doctor K.R. Vikraman, while stating the facts of the case, the Doctor has nowhere mentioned that the stent put in the urinary bladder in April 2002 was removed at any stage. In para 2 (vii), the Doctor has mentioned about the procedure done in April 2002 and the follow up ultrasound examination done on 20.05.2002. However, in the very next para, i.e., para 2 (viii) the Doctor mentions about the review of the patient on 10.03.2003. Since even in the grounds of appeal running into 16 paras, the Doctor has nowhere stated that he removed the first stent, it is clear, therefore, that the version whether the first stent was removed at all has not been explained by the OPs. In the appeal filed by OP-1 Hospital also, there is no mention about the removal of said stent. It is clear, therefore,
that the written version given by the OPs before the State Commission and the appeals filed before this Commission do not carry the same facts because OP-2 mentioned in his written reply before the State Commission that the first stent was removed after two months.
As already stated, the first ultrasound examination of the patient was done by Dr. V.L. Ratnakumari, Radiologist on 02.03.2002 in which there was evidence of two stones present in the right kidney of the patient. However, there was no evidence of any damage to the said kidney apart from saying that the renal pelvis showed mild dilatation. However, the ultrasound examination done at Ittyavira Scan and Genetic Research on 23.10.2002 says as follows:- " There is dilatation of right renal collecting system and proximal ureter. No definite ureteric calculus could be identified. There is, however, a 4 mm size calculus in the dilated renal calyx. Ureteric stricture is possible. Cortico medullary distinction is poor on right side. Left kidney is normal without any calculus. Right kidney measurers 11.5 cm in length as compared to the left measuring 10 cm. Urinary bladder is normal without any calculus or growth. Prostate is normal in size measuring 3.5 cm X 3 cm. Postmicturition study shows complete bladder emptying with no residual urine in it. "
It has been stated that cortico medullary distinction is poor on the right side meaning thereby that lot of damage to the right kidney had already taken place. This report leads us to show that the treatment done by the OPs resulted in damage to the kidney, although his condition was expected to improve, had he been given proper treatment by a qualified professional. It also leads to the implication that the subsequent treatment done by the OPs in March 2003 and June 2003 must have resulted in further damage to the kidney. The OP-2 Doctor has stated in his version that in August 2003, he again advised open surgery upon the patient because he found right side hydrouratronephrosis after an ultrasonogram was done on 18.08.2003. However, the patient decided to go to KMC Hospital where the Doctors told him that his right kidney had already been damaged and shall have to be removed. The surgery was done at the KMC Hospital to remove the right kidney accordingly. All these facts lead to the irresistible conclusion that the condition of the patient went on worsening rather than showing any improvement due to the treatment given to him by the OPs.
The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon''ble Supreme Court of India and the National Commission from time to time. Some basic principles in dealing with the cases of medical negligence have been enunciated by the Hon''ble Apex Court in the case " Kusum Sharma & Ors. vs. Batra Hospital & Medical Research Centre & Ors. [(2010) 3 SCC 480] " as follows:- "I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. ????. III. The medical professional is expected to bring 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 case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." ???????????.
In " Jacob Mathew versus State of Punjab & Anr. " [(2005) 6 SCC 1], the Hon''ble Apex Court while dealing with negligence as tort referred to the Law of Torts , Ratanlal & Dhirajlal (24 th Edn. 2002, edited by Justice G.P. Singh), in which it is noted as follows:- "Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property?..the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former''s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
The well-known ''Bolam Test'' as stated in Bolam vs. Frien Hospital Management Committee [(1957) 1 WLR 582] , has been followed in a number of judgments by the courts in India and abroad. It was stated by Hon''ble Justice Mc Nair in his address to the Jury that a Doctor is not guilty if he has acted in accordance with a practice adopted by a responsible body of medical men skilled in that particular art. However, in the Judgment given in the famous Bolitho case as contained in Bolitho vs. Citi and Hackney Health Authority [(1997) 4 All ER 771], it has been brought out that such body of opinion should have a logical basis and the courts are free to carry out a risk analysis and have a more inquiry approach into the facts and circumstances of the case. In this case, it was stated by Lord Browne - Wilkinson as follows:- "The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
Principle of Res Ipsa Loquitur has been elaborately discussed in the case " V. Kishan Rao vs. Nikhil Super Speciality Hospital " [(2010) 5 SCC 513] and it has been observed by the Hon''ble Apex Court as follows:- "In a case where negligence is evident, the principle of Res Ipsa Loquitur operates and the complainant does not have to prove anything as the thing (Res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to rebel the charge of negligence."
From the facts and circumstances of the case in hand, it is crystal clear that despite admitting the patient a number to times and performing various procedures upon him every time, his condition went on worsening, rather than showing any improvement. A simple perusal of the ultrasound scans done from time to time indicates that the right kidney of the complainant which was not damaged, at the beginning, had to be removed by performing surgery at another hospital. The facts regarding removal / non-removal of stent inserted in the body of the patient are also not clear. The charge of medical negligence against the OPs is, therefore, clearly established as reasonable care and skill has not been shown in the treatment of the patient. We, therefore, do not find any reason to disagree with the findings of the State Commission in so far as negligence on the part of the OPs is concerned.
It may, however, be stated that the State Commission reached the conclusion that complainant was also guilty of contributory negligence as he reported to the KMC Hospital after a delay of two months. We, however, do not agree that there was any contributory negligence on the part of the complainant. He remained under the treatment of the OPs for one and a half year during which he had to be admitted in OP-1 Hospital a number of times and various procedures and tests were performed upon him. Ultimately, when open surgery was again advised to him in August 2003, he decided to shift to the KMC Hospital. Looking at the mental condition in which the patient must have been there, it can be stated there was no negligence on his part.
Based on the entire material on record, we, therefore, hold that the OPs are guilty of medical negligence in this case and hence they are liable to pay the amount assessed by the State Commission, i.e., a sum of 6,20,000/- to the complainant jointly and severally. The first appeals filed by the OPs, i.e., FA No. 410 / 2009 and FA No. 365 / 2009 are, therefore, ordered to be dismissed but FA No. 321 / 2009 filed by the complainant is partly allowed and the OPs are directed to pay a sum of 6,20,000/- to the complainant within a period of one month from the date of passing of this order failing which they shall be liable to pay the interest @12% p.a. on the said amount for the period of default also.
The Registry is directed to refund the statutory amount alongwith accrued interest, if any, to the respective appellants.