S.GURUNATHAN (DEAD) vs VIJAYA HEALTH CENTRE

THIS complaint was filed by the complainant Dr. S. Gurunathan alleging medical negligence on the part of respondent hospital and praying for an award of Rs. 1,29,92,900/- on account of loss of future earnings, medical expenses pain and agony, etc.

BRIEFLY put the facts in the case are that the complainant sustained injury in the right foot on 15th July, 1991 for which the complainant being a medical doctor himself treated the injury of his own and when it did not heal, the complainant went to the respondent hospital on 1st August, 1991 where he underwent several surgeries and was discharged on 23rd September. The complainant again reported to the hospital on 1st October as out-patient with complaint of breathlessness and was admitted in the hospital on 2nd October, 1991 and discharged again on 10th October, 1991 and since then the complainant has been under treatment for kidney related problem for which he was taking treatment including dialysis but from other places. The complainant unfortunately expired on 7.8.1998. The case of the complainant, as set out in the complaint, is that he reported to the respondent hospital after 15 days of the injury in the right foot with a fulminating fever, vomiting and rigor of a duration of one week. In the respondent hospital he was diagnosed as a diabetic with blood sugar of 500 mgs. and wound in the right foot having become gangrenous, in the hospital he was under the treatment of Dr. T.J. Cherian, Physician who referred the case to Dr. Vinoo Abraham, the Plastic Surgeon. On 3rd August, the Surgeon did the debridement by removing the dead tissues and planned for a reconstructive plastic surgery and simultaneously being treatment for control of diabetes. On 6th August, 1991 the complainant underwent myocutaneous microvascular flap reconstructive surgery; for the right foot which lasted for about eight hours. Next day, the complainant developed respiratory distress. Post operatively the complainant was treated with massive antibiotic therapy (Claforan and Netromycin both I.V.), heavy doses of heparin, blood and intravenous fluids. Later there was serious collection under the flap which became oedematous and necrosed in one portion; the necrosed portion was removed under general anaesthesia. Later, the complainant developed fever with chills which was attributed to Malarial parasites and Micro Filariae. Every now and then the complainant developed respiratory distress, bleeding per rectum. Suddenly, the BP went down and was transferred to EMR where it was diagonised that infection had spread to bones leading to septicaemic shock and later acute renal failure. In the complaint he also states that on 5th September, 1991, wound exploration of currettage of infection in the bone was done under anaesthesia on 10th September, 1991, a saphenous graft from left leg was done to the flap for improving vacularity. The initial surgery lasted for six hours. As circulation was not proper there were two corrective surgeries to improve the circulation on the same day, one in the evening and the other at midnight lasting for four hours each. On 23rd September, the complainant was discharged with a raw wound in the right leg and the sutured wound in the left leg with a advice to come for daily dressing. On 30th September, 1991, the complainant reported back to the hospital, underwent another skingraft which was done over the raw wound on the right foot under GA as an out-patient. On 1st October, the complainant reported again with history of severe respiratory distress and was re-admitted where he was treated with heparin and oral anti-coagulants apart from other medications. Complainant was discharged (thrown out to use the words of complainant in his complaint) on 10th October, 1991. After this, the complainant states, he reported to the hospital for periodic wound dressings. Later he developed oedema; swelling all over the body, visual impairment after which he could not report to the Surgeon. At the time of filing the complaint (8.1.1993), complainant states of being totally bed-ridden, unable to use his right leg as the wound is still raw. Left leg also cannot be used because of poor venous return and oedema, vision in both eyes is impaired to the maximum core. The complainant had gone into a state of chronic renal failure which necessitates periodic dialysis and a renal transplant at a later stage. It is his case that he had reported to the respondent Hospital with an injured foot for treatment and what he got in the bargain after two stays in the respondent hospital is all the ailments enumerated above and the complainant attributes this to the mismanagement of the case by the respondent hospital for which he specifically alleges mismanagement in five areas. They are : (1) Improper Diabetic Management. (2) Improper Control of the Infection. (3) Fluid Overload. (4) Therapeutic Mismanagement. (5) Surgical Mismanagement.

Improper Diabetic Management : At the time of admission of the complainant, blood sugar level was found to be 500 mgs. and on 2nd August, 1991 fasting blood sugar was 496 mgs. and the chart given to the complainant also shows that his sugar level never stabilized during his stay in the hospital. This improper control of diabetes must be the cause for kidney damage and vision impairment. It is the complainant''s case that the proper control of diabetes by Consultant with a Diabetologist qualifications would have avoided all the complications. The complainant was being treated for diabetes by Dr. Kamakshi, Junior Doctor by merely adjusting dosage of insulin. 2. Improper Control of the Infection : It is the complainant''s case that his infection was not controlled with a suitable safe anti-microbial agents. This was clearly evident when the infection started spreading to the bones as well as the culture growth performed on 5th October, 1991 during his re-admission. This has been the cause of septicaemic shock and acute renal failure, and subsequent chronic failure.

Fluid Overload : The complainant was transfused with 13 bottles of blood, 7 bottles of blood products apart from intravenous fluids. Even during renal failure the complainant was given blood transfusion and protein infusions, leading to overload of fluids in the system resulting in the damages of vital organs (kidney, heart, lever, lungs). This is evident with the ultrasonography reports enclosed. Intravenous fluid management was monitored with the help of a CVP Catheter, despite the fact that there was heavy volume of overload in the system, for which he had to be admitted in another hospital on 2nd August, 1992.

Therapeutic Mismanagement : The complainant says that he was given Claforan and Netromycin (administered intravenously) to control the infection. It is his case that maximum suggestive dosage is 300 mg. I.M or I.V. in divided doses a day, for a maximum period of 7 to 14 days whereas complainant was given 400 mg. (200 mg. I.V. twice) for more than 22 days and again it was re-started even in the presence of renal failure condition. The drug was re-started by Dr. Kamakshi to be administered to him even when the nephrologist advised to stop the medicine. The complaint was also given heavy dosage of heparin resulting in heavy bleeding per rectum and the complainant suspected this to be the possible cause of haemorrhages in the eyes. Dr. Kamakshi also prescribed Tablet - combiflam to combat oedema in the presence of respiratory distress and impaired renal function whereas the drug is contra indicated, netromycin also causes respiratory embarrassment which needs assisted respiration. Whenever Claforan is combined with Netromycin, renal function must be checked. This was not done in his case. The complainant feels that overload of fluids, antibiotic-theraphy are the main causes of damages to his kidney and vital organs.

SURGICAL Mismanagement : All the surgical interventions on 3rd August and 6th August, 1991 were done, (1) in the presence of infection; (2) diabetes; (3) that any flap or graft surgery over tendon and joints have a poor success rate. A series of surgical intraventions was made to rectify past inadequacies. Fresh graft was done on 29.8.1991 taking a skin flap from the right foot from the same donor site, and the infected site as also spread of infection to the bones was ignored by the Surgeon. Complainant went into septicemia and acute renal failure. All the procedures adopted by the Surgeon were not correct in the light of the condition of the patient. It is his case that so many trial surgeries were performed on him, hence, he was having infection and diabetes with an unhealed injury, no wonder, that he came out worse off at the time of discharge on 23rd September then that he was at the time of admission. 4. The complainant also produced several charts of the hospital in support of his case. It is his case that it is pitiable that he went into a state of renal failure when he was in hospital under medical supervision which he attributes to prolonged usage of Netromycin, improper diabetic control, over blood and blood product transfusion and neglected infection.

The complainant was a practising Doctor but as a result of the treatment not only he is unable to practise having become visually impaired, but has also to spend money on dialysis and other treatments. He specifically attributes the negligence on the part of Dr. Gopalkrishnan, Dr. Kamakshi and Dr. Vinod Abraham who ignored his fever which was attributed mainly to Malarial Parasites. If the fall in BP was treated urgently, renal damage might have been minimised. Alleging negligence on the part of respondent hospital, he prays for award of Rs. 1,29,92,900/- under several heads, largest chunk being Rs. 75.00 lakhs on account of loss of future earnings.

In the written statement filed by the respondent hospital it is stated that the condition of the complainant at the time of discharge was very stable as compared to the critically ill condition in which he came to the hospital. The complainant was in the hospital in two phases, 1.8.1991 to 23.8.1991 and 1.10.1991 to 10.10.1991. (The complaint has been filed in January, 1993.) What transpired after discharge is not known to the hospital. It is the complainant who needs to be blamed for neglecting himself. He, in spite of being a Doctor, did not recognise that he was suffering from gangrene in the foot with undiagnosed untreated severe degree of disbetes. Effect of any treatment after October, 1991, and resultant complication cannot be attributed to the respondent hospital. it is well known that untreated and uncontrolled diabetes of severe degree can damage eyes as well as kidney by causing diabetic retentopathy and nephropathy. According to the respondent hospital, the complainant reported to the hospital for investigations and treatment for irregular fever and an ulcer in the right foot of 15 days duration. Preliminary examination showed gangrene in the right foot and the patient suffering from seven degree of diabetes mellitus. He was given treatment by Senior Consultant, Dr. Cherian, M.D. and then this being a surgical case was referred to Plastic Surgeon Dr. Abraham, F.R.C.S. Diabetes was treated by Dr. Cherian, M.D. under guidance of Dr. Chandran while surgery was taken care of by the Plastic Surgeon. Records show that the patient''s diabetes, kidney functions were being monitored frequently and regularly and appropriate medicines were being prescribed resulting in improvement in kidney function and diabetes. Patient was also exempted from any profesional payment. Present state of health of the complainant is entirely due to his own negligence. It is the case of the hospital that they not only saved his limb but also his eye, hence, there is no case of negligence which can be made out against the respondent hospital.

THE respondent hospital also filed joint reply of the three Doctors namely Dr. Abraham, Dr. Gopalakrishnan and Dr. Vijaylakshami Kamat. THEy stated that the complainant was admitted on 1.8.1991 with a 15 days history of fever and 4 days history of ulceration of his right foot. On admission to hospital it was established that the patient was having diabetic ketoacidosis Septicemia and acute renal failure. His right foot was diagnosed as infected diabetic gangrene which was obviously the cause of his fever. Complainant in spite of being a Doctor was unaware of his having diabetes. After stabilising his general condition and reducing his sugar level, first surgery was done on 3.8.1991 under G.A. Since the complainant was young and his foot pulses were well felt, the Surgeon considered this to be a suitable case for limb salvage. At first surgery debridement of infected and dead tissues was carried out which resulted in exposure of tendons, joints and bones around the ankle and heel; five days later a microvascular tissue transfer of the myocutaneous flap was carried out. This was successful except for a small area of the flap which was necrosed and excised on 5.9.1991. A further microvascular tissue transfer was carried out on 10.9.1991 which was not successful due to vascular thrombosis. A small area of the wound had not healed at the time of discharge on 23.9.1991. He was advised to come back on alternate days for dressing, complainant was very erratic in this regard. It is their contention that limb salvage is not an experimental surgery as alleged by the complainant in his complaint. Dr. Abraham, who is a pioneer in this regard had done 20 such cases of which 15 resulted in limb salvage. He supported this with literature on the subject. It was also denied that removing the saphenous from the leg results in swelling. It is their case that swelling in the legs was due to disuse and hypo-proteinemia. Responding to the point on administration of Netromycin, it is stated that it was started on 6.8.1991 and stopped on 25.8.1991. Bacteriological cultures from his wounds and later coagulase positive staphylococci were sensitive to Netromycin. His renal function was being constantly monitored during the period when he was administered Netromycin which is the least toxic of the aminoglycocides and can result in transient and reversible renal impairment. At the time of his discharge his urea and creatinine had returned to normal. He came back on 30.9.1991 for a minor skin grafting which was done and the patient went back, against the advice of Doctors to stay in the hospital. He again came the next day with a complaint of breathlessness. He was suspected of being in pulmonary oedema or having pulmonary embolus. Appropriate drugs i.e. anticoagulant drugs were given which are well established treatment for such a situation. The seriousness of pulmonary embolism far outweighs the hazards of anticoagulant therapy. It was denied that the viral haemorrhage he suffered was on account of anticoagulant therapy. As long as he was in the hospital, on anticoagulant, he had no eye symptoms. The allegation of the complainant about being overloaded with fluids resulting in his breathlessness on 30.9.1991 was also denied. At the time of discharge on 30.9.1991, there was no fluid overload and also that the complainant went back home against medical advice. As he was at home, respondents had no means of knowing the fluid overload. It was also denied that the complainant''s treatment in August, 1992 in another hospital on account of breathlessness had anything to do with excessive fluid intake. Fluid overload responds to diuretic therapy and does not lead to long term complications. Denying the allegation of repeated use of anaesthesia, it was also stated that modern anaesthesia is perfectly safe and is given repeatedly to sick patient when the object is to cure the patient. It was also studied that there was no need of calling a Diabetologist in the case as he was in the safe hands of a physician of 30 odd years. As in the case of multiple ailments, the complainant was to be treated by a team which precisely was done in this case. Complainant''s case that he would have had a speedy recovery without any side com-plications was also rebutted. Consent of the patient is required if the leg was to be amputated. Intention was to save the limb, if possible. At no stage the complainant expressed his disire to have the leg amputated. Dr. Abraham in fact visited his house in August, 1992 and enquired about his health and took photographs which show foot as completely healed. Complainant was a patient of diabetes, septicemia, renal failure and infected gangrene, was at risk of losing his life and the leg. Both these were saved. The complication of renal failure, diabetic neuropathy and retinopathy are well known sequalae of diabetes and not a result of treatment he received in hospital. A rejoinder was also filed rebutting the above arrangements of the respondent and enclosing some photographs of the foot. In support of his case, the complainant filed affidavits in evidence, in support of complaint and the rejoinder filed by him. He was also examined. On behalf of the respondent, four affidavits were filed by way of evidence and they were also examined by the learned Counsel for the complainant.

IN the examination, the complainant again states that on 14th July, while on pilgrimage to Tirupati, during the stampede he was pushed out from the queue to a heap of gravel when arch of right foot got injured which he was treating himself. He also had low grade fever and also sometimes vomiting. Only at the time of checkup at the respondent hospital on 1.8.1991; he came to know that he was diabetic and diagnosed as having diabetic gangrene. He also states that during 1983-87 whenever he had periodic checkup blood sugar was normal. It was only on 5th September, 1991 that he developed septicaemic shock and renal failure. He also states that he was given Claforan 1 gram combined with Netromycin of 400 mg. intravenously for more than 22 days, which is a highly toxic combination and harmful to kidneys. His renal parameter should have been monitored. Actual dosage of Netromycin is 300 mg. per day divided in doses and that too for a maximum period of one week. He reitrates all acts of negligence in the complaint. IN cross-examination, he admits that he has not produced any document/material to support that he was getting his blood sugar permanently checked up. He was taking these tests regularly. He admits that he had not mentioned the fact in the complant. He admits that at the time of admision, he had diabetes mellitus and it is not a chronic diabetes. At the time of admission his blood sugar was 500 mg. against normal range of 80-120 mg. He also admits that before operation his blood sugar was 140 mg. and that blood sugar was monitored constantly everyday. He was already given copies of hospital record. He also admits that untreated and neglected diabetes will lead to nephropathy it is not correct to say that ''I was suffering from renal failure at the time of admission''. I have not produced any expert opinion in support of my statement. After the discharge he has been getting treatment from other hospital. He also states that he has not made any complaint against Dr. Kamakshi. He asserts that amputation of a limb of a diabetic patient cannot always be considered as a major operation. He goes on to state that it is true that the right leg has been saved but it is functionless. He admits consulting another Plastic Surgeon during 1993-96 but had not stated this fact in the complaint nor has he examined these doctors. It is true that he had not made any complaint to the hospital nor any notice given to them. He states it is not true that he did not attend the hospital on appropriate dates after discharge from the hospital. He produced receipts of payment having been made to the hospital.

ON behalf of the respondent hospital four witnesses were examined. First as the Administrative Officer who did not have much to say on the point of medical negligence. Second witness was Dr. Gopalakrishnan who is both a physician and Medical Suprintendent. He states that he himself is a Diabetologist having been M.D. To his knowledge there is no super speciality in diabetes. ONly M.D. Doctors are specialists in this line. Hence, the allegation that Diabetologist should have been called is meaningless. He goes on to state that damage to kidneys do not occur on account of taking antibiotics because it is only temporary. Complainant was admitted with infection and high fever and high blood sugar. It is true that complainant was not cooperating and did not allow frequent blood tests. Complainant is a chronic diabetic patient. In spite of this the complainant being a Doctor himself, never informed that he is a diabetic patient. At the time of admission, the complainant had mild renal failure. Nephrologist was called only in thirteen-fourteen days of admission because it was considered necessary only at that time as he was not able to pass adequate urine. Renal failure did not occur on account of any negligence on their part. He denied that irreversible damage to kidneys had been done on 5.9.1991. Netromycin was prescribed by the Surgeon. He admits that renal impairement is one of the side effects of taking Netromycin without proper supervision. Dosage of Netromycin was prescribed as per literatures; there is a limit of one or two weeks usually. He denied all allegations of mismanagement levelled by the complainant. Third witness, Dr. Ravi Chandran is the Nephrologist whose treatment the complainant continued, till the last day of his life but outside the respondent hospital. He states that an M.D. Doctor cannot deal with kidney diseases like a Specialist. Urine examination, blood tests for urea, creatinine are the parameters for kidney functions. For a healthy person, blood urea ranges between 10 and 40 mg. and creatinine between 5 and 1.3 . Urine examination, protein excretion examination, blood urea, creatinine, ultrasound of the kidneys are some of the basic tests to find out the kidney function. Serum Electrolyte, Serum protein, albumen are to be tested in case of surgery. if there is electrolyte disturbance, the patient may not be able to withstand anaesthesla. Witness saw the patient on 5.9.1991 and he had acute kidney failure due to volume depletion and septicemia. Even on 1.8.1991, he had kidney failure. Since the kidney function had improved till 5.9.1991 that is why hospital had not called him. ON 2.2.1991 there was mild kidney impairment. ON 5.9.1991, blood urea was 108 and creatinine was 4.6 mg. Netromycin was stopped on 26.8.1991. This can be used for kidney failure with modified dose. Patient had received doze of 400 mg. of Netromycin only on one day. It can be injurious to the kidneys. Ultrasound examination on 5.5.1991 revealed Parenchymal disease, it does not tell about functioning of the eyes and it is not an irreversible disease. After examination he had presented I.V. fluids, diet control, injection Fortam, no dialysis was indicated at that time. High fever was on account of infection and not on account of kidney failure. It is not correct to state that renal parameters have not been monitored. Surgeries done on the patient have nothing to do with kidney failure. Septecemia is due to infection. It has nothing to do with renal function. Even if he had come with acute renal problem, surgeries could still have been done. Diabetic Nephropathy is not mentioned in the discharge summary. Witness also suggested that stay in hospital would have been reduced by doing amputation. Patient complainant was discharged with normal kidney function. He denies that several drugs administered before witness was consulted, produced irreversible damage to kidneys. He also denied mismanagement of kidney parameters and also claimed that he ever suggested to the patient''s wife that this was so. He admits that kidney is more important for life than foot. Fourth witness is the Plastic Surgeon in the respondent hospital. He asserts that reconstructive surgery is better than amputation. Even in diabetic and kidney patient reconstructive surgery can be advised. It will be incorrect to say that reconstructive surgery is an experimental surgery. If the complainant had come to him, he would have advised him the same line of treatment as was given to him. For want of personal knowledge he was unable to comment first-hand as to how and why many factors were addressed. Even though, five points relating to negligence were mentioned in the complaint, but during the time of argument, the learned Counsel for the complainant, Shri R.K. Singh limited his case to the three points V/S relating to negligence i.e. amputation U/s Reconstructive Surgery, over-dosage of Netromycin resulting in all the complications including renal failure, and uncontrolled diabetes during the period of hospitalization. It was argued by the learned Counsel for the complainant that the Surgeon, Dr. Abraham instead of resorting to reconstructive surgery should have resorted to amputation. It was not open to him to deviate from the normal accepted method. The Surgeon did it for trial perhaps and that too without his consent. Normal treatment for gangrene is amputation. It was also argued by him that administration of Netromycin was in over-dosage producing renal failure which rendered both kidneys non-functional. It is not in dispute that Netromycin was given as per the directions of the Surgeon. According to him, Netromycin cannot be given on any day over 300 mg. and cannot be given for over 7 days continuously. In both these respects there was utter negligence in the present case. Even on the pack of the medicine it is clearly written that if it is given for more than 7 days, it would directly result in kidney failure. He also drew our attention to the evidence on record wherein it is stated by the Nephrologist that the patient received Netromycin in dosase of 400 mg. only on one day i.e. on 2.8.1991 and from 3.8.1991 he received only 200 mg. of Netromycin per day for full course till 25.8.1991. As per records the patient had not received 400 mg. of Netromycin. If he had, it is injurious to kidneys. Contradiction is apparent on the face of it. This is a clear case of negligence resulting in kidney failure. He also drew our attention to the literature on the subject and Current India of Medical Specialities (CIMS) a medical journal of May-August, 1994 wherein prescribed dosage is 300 mg. OD and duration of treatment running 7-14 days and one of effects could be Nephrotoxicity. It was argued that the complainant''s diabetes was not controlled and no Diabetologist was consulted. He drew our attention to the written statement of the three Doctors in which it is stated that ''it is not essential or practical for all diabetes to be looked after by a Diabetologist''. He argued that stand of one of the witnesses Dr. Gopalakrishnan that there is no speciality as Diabetologist is not tenable. According to him there are MDs in Endechronology and Stomach and Digestive system who alone are regarded as Diabetologist. Diabetologist is a specialisation. In his written submissions he also added points relating to not taking the consent of the patient as an act of negligence and complete negligence in treating renal failure, which resulted in its aggravation, resulting in his death, later.

On the other hand it was argued by the learned Counsel for the respondent Shri Krishnamani, that the complainant came to the respondent hospital during two periods. Initially, he came for treatment of his right foot with a gangrene injury, he was not charged any fee being a profession Doctor. On admission, he was found to be having a condition of diabetes. Since it was a case of diabetic gangrene, the foot injury was treated by Dr. Abraham who was the Plastic Surgeon, who undertook to save his foot and carried out reconstructive surgery instead of amputation. Since he was a patient of diabetes, complete care was taken to control his diabetes. He was first discharged on 23.9.1991, the complainant got re-admitted on 1.11.1991 complaining of breathlessness and discharged on 10.10.1991. After that the respondent hears about from the complainant is in late 1992, when this complaint was filed. Hospital records show that blood sugar level and other related parameters were being constantly monitored. In fact the complaint is that the complainant never cooperated for his past discharge treatment. The complainant died after 7 years of discharge for which respondent hospital cannot be held liable for any negligence leading to his sad demise after seven years of no contact with the hospital. Arguing on each point of negligence attributed to the respondent, it was stated that proper management of diabetes was carried out. It is an admitted fact that at the time of admission complainant''s blood sugar level was 500 mg. and all efforts were made to control the diabetes on the date of surgery. Any complication which arose in the case arose after his discharge from the hospital. On the point of examination of Netromycin he argued that in the evidence it has come clearly that only on one day 400 mg. Netromycin was administered but it has also been stated by the Physician in his cross-examination that we have to take calculated risk in some cases in life threatening situations. Netromycin was administered within the limits and, as per situation emerging out of parameters on the issue. On the point of reconstructive surgery V/s amputation, it was argued that since the complainant was young and pulses on high right foot could be felt, hence the Surgeon decided to do reconstructive surgery, this was successful and foot was saved. At the time of discharge, complainant was advised to come on alternative days on which he was erratic. It is argued that it was a case where patient did not cooperate as stated in the affidavit of opposite party. The option exercised by the then Surgeon has been supported by his successor, in his evidence. On the subject of fluid overload and Therapatic mismanagement, the opposite parties have denied it and have stated that at the time of discharge, there was no evidence of fluid overload. He got admitted for the treatment of fluid overload in August, 1992 in another hospital. What was the patient doing at home between the date of discharge and August, 1992 is only known to him. Medically also, the phenomenon can be managed by restructuring the fluid intake, in any case it is a temporary phenomenon. The opposite parties have imparted reasonable standard of care. The test is ''the standard of the ordinary skilled man exercising and professing to have that special skill''. ..... It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. Bolam v. Friera Hospital Management Committee, (1957) 2 All.ER 118, in Laxman Balkrishna Joshi v. Trenibak Bapu Godbole, (1969) 1 SCC 206, Hon''ble Supreme Court held, "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 particular circumstances of each case is what the law requires". Doctors had done their best and, the foot and life was saved. To attribute any negligence and that too in the absence of any expert evidence will be begging the question. It was argued by him that the complainant has miserably failed to prove any negligence on the part of the respondent. This complaint needs to be dismissed.

WE have gone through the material on record and heard arguments and find that the complainant reported to the respondent hospital on 1.8.1991 with a wound on right foot and fever, where his foot was diagnosed as infected diabetic gangrene which perhaps was the cause of the fever. On tests his blood glucose was found to be 500mg. against a normal range of 80-120 mg. Two things strike us at this stage. One he never mentioned at the time of reporting or in all the pleadings as to what he did for 15 days of injury to the foot. Did he ever take any A.T. injection. Secondly, he does not even whisper a word about diabetes. During his examination only, he admits that he was undertaking regular tests to check up his blood sugar etc. for which he fails to produce any record. It is well known that no one, least of a all a Doctor, can develop diabetes one fine morning and his blood and his blood sugar touches 500 mg. i.e. four to five times of the normal. There are five specific allegations of negligence levelled by the complainant and one more added in his written submissions. First one relates to improper diabetic management. It is the complainant''s case that he should have been seen by a Diabetologist. In his cross-examination the Physician Dr. Gopalakrishnan states that M.D. qualification is the only degree known on the subject. There is no super speciality like others in Diabetology. Complainant at no stage produced any material or evidence to the contrary in the absence of which we are inclined to agree with the witness that he being a M.D. had ample qualification to deal with the complainant''s diabetes. From the hospital record we also see that sugar which was 500 mg. on 1.8.1991 never reached that high level again during his stay. Most of the time/days it was less than two hundred. Complainant has not been able to prove any negligence on this count. On the question of fluid-overload, there is only an allegation by the complainant and a denial by the respondent Hospital. It has also come in evidence that the complainant went to another hospital in August, 1992, after about 10 months of discharge from the respondent hospital. It is the case of the respondents that firstly at the time of discharge there was no fluid overload, and secondly, after discharge what was the complainant doing to himself is not known to them, and, this is a temporary phenomenon which can be managed by restructuring the fluids intake thereafter. There is no material on record of the hospital where the complainant got admitted on August, 1992, co-relating fluid overload problem with his stay in respondent''s hospital or any evidence in this regard. In our view the complainant fails to prove any negligence by the respondent on this point. On the point of improper control of the infection, the allegation is that the infection was not controlled with safe microbial agents, infection started spreading to bones and the ''culure'' growth performed on 5th September, 1991 makes this negligence evidently clear, which resulted in septicimic shock and renal failure. The respondent''s case is that culture Swabs were taken and anti-biotics given as per sensitivity reports. In fact, according to them complainant was admitted with septicemia and renal impairment as stated by the Nephrologist, Dr. Ravichandran; urea creatinine levels were found to be normal on 3.8.1991 on the day of first major surgery and with constant treatment they were kept within limits. According to the Nephrologist who was treating him even much after the discharge from the respondent hospital, in fact till the date of death of the complainant, states in his cross-examination that "even on 1.8.1991 he (complainant) had kidney failure". The complainant in his cross-examination states "I was not suffering from renal failure on the date of admission in the opposite party hospital. I have not produced expert opinion to support my submission. The opinion of the Nephrologist must be authoritative". In our view the complainant fails to prove that his infection was mismanaged resulting in renal failure. Neither the record nor the evidence on record support this. On the point of surgical mismanagement only point at issue is, should the Plastic Surgeon have amputated the foot or he was right in doing reconstructive surgery ? No material has been brought forward by the complainant to show us that amputation was the only approach. On the contrary, the Surgeon has produced literature in support with the heading ''The foot with diabetic gangrene can be saved'' printed in a journal and written by the Plastic Surgeon himself as well as an Article titled "Limb Salvage of Infected Diabetic Foot Ulcers with Microsurigcal Free-Muscle Transfer" by a set of Chinese Doctors who published the paper after a detailed study. They held that ''The Microvascular Free-Muscle Transfer was proved to play an important role in limb salvage in a diabetic patient with infected foot ulcers. The gracilis muscle flap was recommended due to its lack of bulkiness and minimal donor site morbidity. It appears that motivated by these considerations as well as also the fact that foot pulse was felt that he was considered a suitable candidate for limb salvage. It is also on record that the Plastic Surgeon had done number of such surgeries and most of them were restored to original position with this technique. We find no material on record or during arguments based on expert opinion to suggest that reconstructive surgery was not the correct method to treat the foot. The complainant relied on literature ''Medical Negligence and Compensation'' by Dr. R.K. Bag. After perusal of this material we do not find anything related to amputation V/s Reconstructive surgery. Complainant also wishes us to rely on selective references from the Article of Dr. Abraham which is on record in which the Plastic Surgeon states that till now amputation was the only treatment for diabetic gangorene and person to suggest that reconstructive surgery should be done only if it is possible to preserve the heal for future weight bearing then ''only it is worth preserving the foot''. The argument does not take us anywhere and does not prove anything. Pulse of the foot was being felt, Surgeon had successful experience in this regard and he did whatever he considered in the best interest of the complainant patient. There is no motive attributed except that it was being done as an experimental/trial which is not borne by the material on record. Doctor who had an option and he exercised this option which any Doctor with experience and in the best interest of the patient took, and contrary is not proved, benefit goes to the Doctor for exercising a judgment/option. Being a qualified Doctor, respondent cannot be faulted on this count, hence, we do not find any merit in this allegation.

ANOTHER point made out is that no consent of the complainant was taken before carrying out the surgery. Complainant''s case is that a general consent is taken on 3.8.1991 which was for a particular operation. No other consent was taken, not even for the major operation done on 6.8.1991. The Administrative Officer admits that consent was not as per M.C.I. guidelines. We have seen that the consent given by the complainant on two occasions, one dated 3.8.1991 and the other dated 21.8.1991. It is no one''s case that there was no consent at all. We also see that consent does not appear to be as per M.C.I. norms. Limited question is, should consent have been taken each time ? Hospital''s contention is that there was no such necessity as it was a continuation of the same surgery which was started on 3.8.1991. We also see that this is not even part of the complaint filed by the complainant or referred to in the rejoinder filed by the complainant. We get an impression that at the time of arguments this point has been raised. Examination including that of the complainant also does not make this as a specific point of negligence. We find that this act of negligence is outside the pleadings and it is settled law that the complainant cannot go beyond the pleadings, hence, we are not inclined to take this point in consideration at this case. Major challenge or the allegation centres around the administration of Netromycin. In his complaint the complainant states that he was injected Netromycin intravenously for 22 days @ 400 mg. whereas maximum suggestive dosage is 300 mg. I.M. or I.V. in divided dosages a day for a maximum 7 to 14 days. This was restarted even in the presence of renal failure condition. He also argues that Netromycin causes respiratory embarrassment which needs assisted respiration. Over-dosage of Netromycin produced renal failure. It is admitted that Netromycin was given from 1.8.1991 to 25.9.1991 for 25 days and again from 10.9.1991 to 12.9.1991, thus, in all for 28 days. In his cross-examination Dr. Ravichandran states that Netromycin was stopped on 20th August, 1991 and Netromycin can be used for kidney failure in the modified dosage. He goes on to state that the patient was not given 400 mg. of Netromycin. If he has received it, it is injurious to the kidneys and goes on to say that kidney is more important than the foot and also that acute renal failure has occurred during hospitalisation. In his cross-examination the physician, Dr. Gopalakrishnan states that renal impairment is one of the side effects of taking Netromycin without proper supervision. Perusal of material on record shows that the complainant was given Netromycin I.V. from 1st to 26th August, 1991 and again for 3 days from 10-12 September, 1991. We have also seen the Nephrologist stating that if the complainant has received more than 400 mg. it is injurious to kidneys but at the same time he also states that Netromycin can be used for kidney failure with modified doses. We also see the Nephrologist stating in his cross-examination that at the time of admission the complainant had kidney failure and goes on to deny that "several drugs administered to the patient before I was consulted produced irreversible damage to the kidneys" and further goes on to deny that "there was mismanagement of the kidney parameters at the respondent hospital. ...." He also denied that at any stage he discussed with patient or patient''s wife that there was mismanagement in respondent hospital. We also do not have any expert evidence to show as to what effects will be there if a patient is given dosage of Netromycin for more than 14 days and once more than 400 mg. The complainant at the stage of arguments wants to rely on a document titled current index of Medical Specialities in his support. Neither the hospital nor the witnesses were confronted with this document at the time of recording evidence. We are in no position to lend it any evidentiary value at this stage. We also see that all the parameters were continuously being monitored. The chart prepared by the complainant and enclosed by the complainant also shows that blood urea was brought within limits. Creatinine was within limit. Record of evidence before us makes it clear that the patient comes with diabetic gangrene, infected right foot and renal impairment. An important fact is that he did not come back to the hospital for post discharge treatment and suddenly after almost a year of discharge he comes to complain of negligence on the part of respondent. We are inclined to agree with the respondent hospital that the hospital does not know what transpired in the interregnum period. Whether he was under treatment and if so, to what effect. No Doctor has been examined who treated him later to substantiate his allegation that his state of health was on account of any negligence on the part of respondent hospital. It is to be noted that while Physician, Dr. Gopalakrishnan states that it was Surgeon, Dr. Vinoo Abraham who had prescribed Netromycin but Dr. Abraham could not defend himself either by way of filing affidavit by way of evidence or for that matter by cross-examination as, unfortunately he had died in March, 1995. Based on material evidence, as discussed above, we are unable to conclude that there was over-dosage of Netromycin or there was any ill effect associated with Netromycin. For want of any expert evidence led by the complainant on this point. Suffice it to say that the evidence of Nephrologist; Dr. Ravichandran on which the complainant wishes to rely so much, clearly does not help him at all, in view of his denial on the question of mismanagement. An attempt is made to help deviate our impression by selectively reading the evidence of the Doctors piecemeal but after seeing and analysing the material brought on record and through the evidence as a whole, we are not inclined to agree to any act of negligence on the part of respondent hospital especially on account of the fact that no expert evidence was led by the complainant on support of his case. If the main stay of the complainant''s case was over-dosage of Netromycin and he was relying upon the evidence of Doctor Nephrologist where he states that administration of 400 mg. of Netromycin could be injurious to kidneys. This in our view does not help him much. Could the injury be reversible or irreversible, temporary or permanent, especially when Netromycin was administered after culture and sensitivity tests which showed his infection being sensitive to Netromycin. We also see from record that there is no complaint for almost ten months, of any kidney problem, after his discharge from the respondent hospital. He being a doctor could not have been oblivious of the state of his health. Complainant in such circumstances should have supported his case by some expert evidence/witness. The Commission has held in Sethrama Subramaniam v. Triveni Nursing Home, I (1998) CPJ 10 (NC)=1997 (2) CPR 144. .... "the complainant did not requisition the services of any expert evidence on behalf of the complainant. In the absence of expert evidence on behalf of the complainant, the State Commission was right in relying upon the affidavits filed by the four Doctors on behalf of the Respondents". In the light of this, in our view, complainant fails to substantiate and sustain this allegation. In the light of material on record and evidence advanced by both sides, we do not find any negligence on the part of respondent hospital. We are further encouraged in our view by several judgments of the Hon''ble Supreme Court. In Dr. Laxman Balkrishan Josh v. Dr. T. Bapu Godbole, AIR 1969 SC 128, Hon''ble Supreme Court held ''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 particular circumstances of each case is what the law requires''. In N.T. Subramanaya v. Dr. B. Krishna Rao, II (1996) CPJ 233 (NC)=1996 (2) CPR 247 (N.C.), this Commission has held, ''A Doctor can be held guilty of negligence only when he falls short of standard of reasonable medical care. A Doctor cannot be found negligent merely because in the matter of opinion he made an error of judgment''.

IN our view the complainant has failed to prove any negligence on the part of respondent hospital in the instant case or to show that the respondent hospital or the treating doctors fell short of the standard skills of any doctor or they failed to do what they should have done or vice-versa. We find no merit in the complaint, hence, dismissed. Keeping in view the facts and circumstances of the case, no order as to costs. Complaint dismissed.