New India Assurance Co. Ltd. vs Palagiri Kumari & Ors.

Dr. S. M. Kantikar, Presiding Member

The instant appeal is filed by the insurance co. - appellant against the Order dated 16.12.2008 passed by the Andhra Pradesh State Commission, which allowed the complaint and held the Opposite Parties Nos. 1, 2, 4 and 5 ( hospital and doctors) liable for medical negligence. The Opposite Party No. 6 being the insurance co. was directed to pay the awarded amount since it had undertaken to indemnify the Opposite Party No. 1.

For convenience, the parties are referred as presented before the State Commission. M/s. Yashoda Superspeciality Hospital is Opposite Party No.1 and the treating doctors are Opposite Parties Nos.2 to 5 namely Dr. P. Ranganadham is a Neuro Surgeon, Dr. T. Dasaradha Rama Reddy is a surgeon, Dr. Dh. Krishnam Raju and Dr. M. Venkateswara Rao are the physicians.

Brief facts are that on 20.02.2002, Mr. Eswhar Reddy, a contractor (herein referred as 'the patient') was assaulted by dacoits and sustained head injury. After some first aid he was taken to Yashoda Super Speciality Hospital (the Opposite Party No. 1) on the next day i.e. 21.02.2002. It was diagnosed as a case of Extradural Hematoma (EDH). On the same day, Temporal Craniotomy Evacuation surgery was performed by Opposite Parties No. 2 to 5. It was alleged that the surgery was performed without consent of the patient. Complainants further alleged that due to negligence during post-operative period, the patient developed Pneumonitis infection and died on 11.03.2002 due to septicaemia. Being aggrieved, the complainant Paligiri Kumari (wife of the deceased) along with her daughter Shilpa and son Siva Kumar filed a complaint before the State Commission, Hyderabad alleging medical negligence against the Opposite Parties Nos. 1 to 5. The two insurance cos. were also impleaded as Opposite Parties Nos. 6 & 7.

The opposite parties filed their written version and denied any medical negligence or deficiency in service on their part. It was the emergency case of head injury. The patient and relatives were informed about the serious condition. The treating doctors after proper investigations (lab and radiological) immediately performed evacuation of extradural hematoma by temporal craniotomy surgery, after obtaining informed consent of the patient's relatives. The patient was under continuous observation of the treating doctors but he developed viral pneumonitis during post-operative period. Despite every efforts, the patient could not be saved. There was neither deficiency in the treatment nor any negligence of the treating doctors during surgery and during post-operative treatment.

The State Commission after hearing the parties, allowed the complaint. It held the OPs Nos. 1, 2, 4 & 5 liable. Since O.P. No. 1 hospital vicariously liable for the acts of its employees, O.P. No. 6 insurance co. was directed to indemnify and pay an amount of Rs. 7,70,000/- towards financial loss, Rs. 15,000/- towards loss of estate, Rs. 15,000/- towards loss of consortium together with compensation of Rs. 1 lakh and costs of Rs. 5,000/- to be paid within four weeks failing which, the amount would attract interest @ 9% per annum. The case against opposite parties no. 3 and 7 was dismissed without costs.

Being aggrieved by the Order of the State Commission, the Opposite Party No. 6 - Insurance Co. filed the instant appeal.

Heard the learned counsel for both the sides and perused the material on record including the medical record annexed herewith the memo of appeal.

The learned counsel for the complainants reiterated the facts, that the craniotomy surgery was performed without informed consent and there was deficiency in treatment during post-operative period. The patient developed viral Pneumonitis and died on 11.03.2002. After the Post Mortem (PM), the dead body was handed over to the relatives in the morning on 12.03.2002. The PM was performed by the Professor of Forensic Medicine at Gandhi Medical College and cause of death was reported as septicaemia i.e. serious infection of blood stream including bacteraemia and toxaemia. Thus, the death was due to negligence and deficiency in the treatment during post-operative period. The doctors failed to control the post-operative septicaemia and also failed to diagnose the possibility of fungal pneumonia.

Learned counsel for the insurance co. made his arguments as stated in its affidavit of evidence and denied deficiency in service or negligence of hospital or treating doctors during the treatment of critical patient. The counsel brought our attention to the relevant medical record and day to day progress/ treatment sheet.

We have perused the entire material on record. On careful perusal of medical record it revealed that on 21.02.2002, the patient was admitted to the Opposite Party - Hospital with a head injury and with complainants of giddiness (drowsy) and vomiting for several times. He had headache and developed further giddiness. Multiple abrasions were noted and the lacerated wound on the scalp was sutured. After clinical evaluation in the laboratory & radiological investigations it was diagnosed as a case of large extradural haematoma. The patient's blood sugar was high- 272 mg % and urine sugar was (4+) with traces of Ketone bodies. The emergency craniotomy and evacuation was decided as a proper treatment. The attendants were informed about the critical condition of the patient and need for emergency high risk surgery. Accordingly 'high risk consent' (informed consent) was obtained from them and the doctors performed right frontal craniotomy and evacuation of epidural haematoma. The patient was steadily improving and there were no symptoms of drowsiness. However, in the night of 25.01.2002, the patient complained of mild headache with diffuse body ache. He vomited also. On 28.02.2002, the patient complained of dry cough, headache and vomiting. The patient was febrile. On 01.03.2002 in the night the patient vomited five times and showed symptoms of heaviness of head, irrelevant talks and sleepless night, therefore the patient was again shifted to ICU. On 02.03.2002, patient was drowsy and there was rise in the temperature from 102°F to 104°F. The cerebrospinal fluid (CSF) analysis was done. On 03.03.2002, the patient was conscious, coherent but drowsy. Till 07.03.2002, the patient's condition was satisfactory, though he was conscious but drowsy. The fasting blood sugar was 264mg%. The temperature was fluctuating between 99°F to 101°F. On 07.03.2002, the patient was looking dull; the movements in the right upper limb and the right lower limb were decreasing. The patient was diagnosed as having Herpes Simplex viral infection and anti viral was started accordingly.

On the 15th post-operative day, i.e. on 08.03.2002, the patient became unconscious and did not respond to verbal stimuli. The temperature was 104°F. Based on the condition of the patient, the doctor intubated him. Blood culture was done and reported as sterile. On 09.03.2002, the patient had few convulsions, right lung Pneumonitis was suspected and the respiratory rate was increased (tachypnoea), patient was febrile. The X-ray chest showed right sided pleural effusion. The oxygen saturation was low (85%). The Arterial Blood Gas (ABG) was showing type-II respiratory failure. On 11.03.2002, the patient was connected to ventilator, the condition was critical (GCS-E2 VT M1-2), therefore, tracheostomy was done. The condition of the patient further deteriorated, he developed cardiac arrest at 9.15 pm. The cardiopulmonary resuscitation (CPR) was done but the patient could not be revived and was declared dead at 10.30 pm.

The instant case revolves around two main issues; one is with respect to 'informed consent', and the other 'post-operative care'. On the first point of 'informed consent', we note that the patient was admitted in the hospital in emergency due to head injury. On examination he was drowsy and intubation was difficult. Large extradural hematoma was diagnosed and the emergency craniotomy and evacuation of the blood clot operation was needed. The patient was not in a position to give informed consent. Therefore, a hand written consent was obtained from two attendants of the patient; one of them was the cousin of the patient. It is reproduced as below:

"21/02/2002                Informed Consent

The attendants of Mr. Eswhar Reddy have been explained that patient has EDH which requires Craniotomy and evacuation. This procedure involves overall risk to life of 10% due to age, size of Hematoma and Diabetes.

Intraoperatively there may be blood loss which requires blood transfusion. Post operatively there may be weakness on left side of the body? Delayed recovery from brain Anesthesia.

We herewith give consent to above mentioned surgery after knowing the complications in detail.

Signature of attendants

-sd/- (attendant) not legible.

Cousin of the patient

-sd/- (C. Sudarshana Reddy)

(emphasis supplied)

Thus, in our view, it was an informed consent and we do not find any deviation from standard medical practice.

Secondly, about the 'post-operative care', the State Commission held that the doctors were negligent during post-operative care which caused septicaemia and the death of the patient.

We find that the entire medical record maintained properly with the progress sheets. Admittedly, the patient was a known case of diabetes, his blood glucose values were high. On 21.02.2002, doctors performed temporal craniotomy and removed the large epidural hematoma. During surgery three units of blood was transfused. The patient developed some complications post-operatively. As per the temperature record chart the patient was having mild fluctuating fever around 100oF during 22.02.2002 to 11.03.2002. In our view, such fluctuating temperature was not always because of severe infection. It is also pertinent to note that the patient was under the treatment of higher antibiotic therapy. The patient complained of mild headache and vomiting on 24.02.2002, thereafter he was shifted to the ICU. He further developed convulsions on 05.03.2002. The CT Scan was repeated, it showed normal study and the wound was healed. The patient developed pneumonitis of the right lung which was spreading rapidly and subsequently he became unconscious, it was type-2 respiratory failure. Therefore, the patient was put on a ventilator. In spite of proper antibiotic therapy, there were no signs of improvement in pneumonitis. On 11.03.2002 tracheostomy was performed to improve respiration and drainage of secretion from air passage, but the patient did not improve. The patient suffered cardiac arrest at 9.30 pm. The doctors performed CPR (Cardiopulmonary resuscitation) as per ACLS (Advanced Cardiac Life Support), but the patient could not survive.

Based on the medical record and chronology of treatment, we find the allegations of the complainant against the hospital and the treating doctors are unsustainable. The treatment given was as per standard of practice. The treating doctors were qualified and expert in their speciality.

Based on the entirety of the sequence of events recorded in the progress sheets (medical record), it is apparent that the death of the patient was due to cumulative effect of multiple ailments like diabetes, head injury and subsequent pneumonitis of the right lung. We note that the treating doctors have made their best efforts to save the patient. We do not find any deficiency or negligence on the part of the treating doctors.

We further note that the instant appeal was filed by the New India Assurance Co. Ltd., who issued professional indemnity policy to the Yashoda Hospital - Opposite Party No. 1. The medical record and the evidence on file reveal that the hospital is well-established having facilities for major cardiac and brain surgeries, hip replacement and other surgeries. The treating doctors (Opposite Parties Nos. 2 to 5) are highly qualified and experienced, comprised of Surgeon, a Neuro Surgeon and the physicians. The patient was treated as per the standard medical emergency. The progress sheets clearly establish the day to day follow up and proper course of treatment. The patient was given blood transfusions and higher antibiotics to control pneumonitis. Oxygen support was given as required. We find the treating doctors (OPs No. 2 to 5) and the hospital (O.P. No. 1) had exercised reasonable degree of care with their skill and expertise.

It should be borne in mind that 'no cure is not a negligence'. Moreover for any mishap, the doctors or hospital shall not be unnecessarily fastened the liability. The instant case was an emergency and the doctors treated the patient as per the standard of medical practice. The State Commission has erred and held the opposite parties liable for medical negligence. We, therefore, set aside the impugned Order and allow the instant appeal. Consequently, the consumer complaint is dismissed.

Per Hon'ble Mr. Dinesh Singh, Member

In the obtaining facts and the available evidence on record, it is not feasible to conclusively attribute non-adherence to duty of care and standard of practice, it is difficult to conclusively establish medical negligence / deficiency on the opposite party no. 1 hospital and the opposite parties no. 2 to 5 doctors.

The appeal succeeds, the complaint stands dismissed.