(Smt. M. Shreesha, Incharge President)
Aggrieved by the order in C.C.No.350/2005 on the file of District Forum-II, Visakhapatnam, the opposite parties preferred F.A.No.567/201, whereas the complainants preferred F.A.No.568/2011 dissatisfied with the award of the District Forum. Since both the appeals arise out of the same order, they are being disposed of by a common order.
The brief facts as set out in the complaint are that the first complainant is the husband and complainants 2 to 6 are daughters and complainants 7 and 8 are sons of one Smt.S.Atchiyamma. The complainants submitted that Smt.S.Atchiyamma on 24-2-2003 complained of chest pain and immediately on 25-2-2003, the first complainant took her to one Mr.P.Ramana Rao, M.D.Asst.Professor of Cardiology, Visakhapatnam who after thorough clinical examination advised i) Thread mill test, ultra sound test, blood test, urine test, ECG and x-ray and she underwent all these tests and again approached Dr.P.Ramana Rao who on perusal of the said tests suggested her to undergo Angiogram and Dr.Ramana Rao conducted Angiogram at Apollo Hospital and informed that her main valve in the heart is blocked to an extent of 60% and requires bye-pass surgery and advised her to admit in Apollo hospital for bye pass surgery. In pursuance of the same, the first complainant admitted his wife in Apollo Hospital Visakhapatnam on 8-3-2003 for bye pass surgery and one Dr.A.N.Srinivasa Rao, who is working as Cardiologist in Apollo Hospital advised and informed the 1st complainant that Care hospital would be better in performing bye pass surgery when compared to Apollo and suggested him to shift the patient. Therefore the first complainant sought discharge of his wife from Apollo hospital and on 10-3-2003 took her to Care hospital and 2nd and 3rd opposite parties informed that they charge Rs.1,00,000/- for bye pass surgery but expressed their willingness to charge only Rs.80,000/- from 1st complainant as he was referred to CARE hospital by Dr.A.N.Srinivasa Rao and made it clear that they will conduct all necessary investigations before performing bye pass surgery and also during post operative period and represented that they would take all necessarily care both during pre and post operative stages. The first complainant submitted that on 13-3-2003 at about 8.00 a.m. his wife was taken to the operation theatre and stated that they operation would be performed at 10.30 a.m. but it was done at 4.30 p.m.
The complainants submitted that before operation, the opposite parties did not carry out any investigations on the patient and they simple swayed on investigation done by Apollo Hospital on 8-3-2003 and after 3 days of operation, the patient was shifted to ICU. After 3 days, i.e. on 16-3-2003, the patient developed vomitings, motions, Low BP fever and the same was noticed by the 1st complainant and his daughters and sons at visiting hours and immediately they approached 3rd opposite party who was available at intensive care unit and he intimated that the patient was fine. The complainants submitted that on the next day, she developed high fever with chills and her children informed the 3rd opposite party, who did not respond. On 20-3-2003 the patient developed nasal bleeding and the same was informed to 3rd opposite party but he did not act upon it and on 22-3-2003 one Dr.Krishna Kishore ENT surgeon attended but he too could not cure it and observed that it does not come within the purview of his diagnosis and prescribed soframycin for nasal bleeding. Thereupon the 1st complainant requested opposite parties to arrange Dr.Gyaneswar, General Physican of K.G.H. Visakhapatnam to examine the patient however they paid a deaf ear and hence the 1st complainant approached and on his request for 2 days, Dr.Gyaneswr attended on the patient at Care Hospital on 26-3-2003 and examined her and suggested change of drugs. But, the opposite parties did not provide the medicines suggested by Dr.Gnaeswar. On 26-3-2003 at the request of the 1st complainant, the 3rd opposite party examined the patient and informed him that her kidneys were damaged and immediately the 1st complainant and her sons and daughters were prepared to donate their kidneys and requested to arrange for kidney transplantation. However the third opposite party repelled it. On 25-3-2003 on repeated requests of 1st complainant, the opposite parties conducted blood test on the patient and confirmed jaundice and did not give any proper treatment though she had been developing different types of complications every day since the operation. The complainant submitted that the opposite parties treated her carelessly and neglected her and her hands, legs and head were completely tied with bandage and was subjected to intolerable torture and on 27-3-2003 she was declared dead. The complainants submitted that before her death, the 2nd opposite party removed the ventilator despite repeated demands made by the complainants not to remove and besides expressing their willingness to bare the expenses of ventilator. The 1st complainant submitted that his wife died only because of the negligence of rendering post operative care by opposite parties. The complainants submitted that according to discharge summary issued by CARE hospital dated 27-2-2003, the cause of death of the patient is due to âCAD-Post CABG, Epistaxis, Malaria, Septic Shock, Pancytopenia, Acute Renal Failure, Metabolic, Acidosis and thus it is clear that the patient got Malaria, Jaundice, Septic Shock and renal failure after operation and during post operation period and the opposite parties have not taken any steps to prevent the patient from getting Malaria and septic shock and submitted that Renal failure is only on account of not providing proper treatment. The complainant submitted that it was not made clear to them as to which date exactly the patient had Septicemia and in fact PERIPHERAL SMEAR of the patient conducted on 24-3-2003 disclosed PANCYTOPENIA PROBABLY DUE TO SEPTICEMIA but the opposite parties did not inform the same to complainant and have not provided any treatment to the patient and have manipulated the date of conducting the test i.e. the date 24 numerical â4 was altered to â6 in the manuscript to show as if the test was conducted on 26-3-2003 and not 24-3-2003 to escape their inability since they failed to provide any treatment to the patient despite discovering PANCYTOPENIA PROBABLY DUE TO SEPTICEMIA and secondly not conducting any test till 26-3-2003 inspite of number of complications construed deficiency in service on the part of the respondents.
The complainants further submitted that renal failure is curable however, no care was taken by the opposite parties and no nephrologist was consulted to attend to the patient and even Dialysis was not done. The complainants submitted that the patient was in perfect health condition in all other aspects at the time of her admission into CARE hospital and she was admitted in Care hospital on 10-3-2003 only with complaint of 60% of block in main valve of her heart and in fact all investigations were conducted on her by Manasa Medical Centre, dt.26-2-2003, Visakha medical centre, dt.4-3-2003, Apollo hospitals, Visakhapatnam dated 9-3-2003 and 10-3-2003 and they disclosed normal and the patient developed âCAD-Post CABG, Epistaxis, Malaria, Septic Shock, Pancytopenia, Acute Renal Failure, Metabolic, Acidosis only after operation at Care hospital during post operative period and died only on account of those complaints which establishes deficiency in service on the part of the opposite parties. The complainants submitted that the patient developed nasal bleeding from 20-3-2003 but the respondents did not provide treatment for her for a period of 2 days and neither called any ENT surgeon or attended the patient inspite of requests made by the 1st complainant and his children. The complainants further submitted that the endorsement of 2nd opposite party on the progress sheet clearly discloses that the patient was affected with Jaundice during post operative period and due to negligence and deficiency in service the death of the patient occurred and when the complainants questioned the death of the patient, the opposite parties admitted their deficiency and negligence in respect of the patient and returned Rs.50,000/- out of Rs.80,000/- paid and also refused to recommend post mortem. Thereafter the complainants lodged a police complaint against opposite parties for their negligence and filed the complaint for a direction to the opposite parties to pay an amount of Rs.14,00,000/- to the complainants 2 to 8 @ Rs.2,00,000/- for loss of their mother, Rs.3,00,000/- to first complainant towards loss of company of his wife together with compensation of Rs.2,00,000/- and also return the balance amount of Rs.30,000/- which was paid for carrying bye pass surgery together with costs of Rs.10,000/-.
Opposite party No.3 filed counter which was adopted by the other two opposite parties resisting the complaint. He admitted that the first opposite party is running the hospital while he is the director and one of the cardio Thoracic surgeon and that they conducted by pass surgery for heart patients. He submitted that Dr.Soma Raju is the chairman of Care Hospital and he is not the Managing Director and submitted that the complaint is liable to be dismissed on that ground only. Opposite party No.3 submitted that the first complainant along with his wife and daughter attended the O.P. Department of CARE hospital with a referral letter of Dr.A.N.Srinviasa Rao of Apollo Hospital, Visakhapatnam and the first complainant expressed his willingness for bye pass surgery at CARE hospital, Visakhapatnam. Opposite party No.3 submitted that one of the important reasons for bringing the patient to CARE hospital was because of the low package cost of surgery when compared to Apollo hospital and the first complainant also brought pressure on the hospital through the local politicians including one MLA regarding the concession of the package. Opposite party No.3 submitted that all the relatives and the first complainant were explained in detail about the disease which the patient was suffering and also the possible benefits and risks of coronary artery by pass grafting surgery. Opposite party No.3 submitted that in the text book on Cardiac Surgery written by Kirklin Barrath-Boyes published by Churchill Living Stone 3rd edition, it is very clearly mentioned at page 388 the seven variables most predictive of early mortality are
i) old age
ii) Female gender
iii) Previous CABG
iv) Urgency of operation
v) Increasing LV disfunction
vi) Left main disease
vii) Increased extent of Coronary artery disease.
Opposite party No.3 submitted that out of the seven variables mentioned above, the patient had two, namely she was a female and that she had left main disease and at the time of admission, apart from General consent form, high risk consent form was also signed by the patient and also by the third complainant and the high risk consent form clearly states the possible complications like bleeding/dysarrhytmias/renal disfunction/respirator problems/neurological problems like stroke or death which may occur during and after surgery and also told about the possible need for Intra aortic, ballon pump during or after surgery like a ventilator for breathing problems.
Opposite party No.3 admitted that opposite party No.2 and he have conducted all investigations before byepass surgery and also during post operative period and represented that they have taken all necessary care before and after the byepass surgery. Opposite party No.3 denied that he gave cent percent assurance that 60% block in the main valve of the heart would be cured and submitted that no medical man would given such an assurance and submitted that the total cost of the package is Rs.80,000/-. Opposite party No.3 submitted that the surgery was performed on 13-3-2003 and denied that it was conducted at 4.30 p.m. and admitted that on 16-3-2003 the patient complained of vomiting and motions and that they had treated and attended on the patient and that the patient also developed high fever and chill and denied that they did not respond. Opposite party No.3 denied that he did not act upon immediately when the patient complained of nasal bleeding and submitted that the initial treatment was given for nasal treatment and also the help of ENT specialist Dr.Krishna Kishore was also taken and therefore such allegation is false. He submitted that the 2nd opposite party who is a General Physician has been attending to the patient in regular course and when the first complainant requested to arrange Dr.Gnaneswar, General Physician, KGH hospital to examine his wife, immediately they requested Dr.Gnaneswar to visit care hospital and see the patient and he give a prescription and perusal of the case sheet clearly shows that the patient was given all the medicines suggested by Dr.Gnaeswar. Opposite party No.3 denied the allegation of the first complainant that at his request only on 26-3-2003 the patient was examined and submitted that routine blood tests were done as part of their own procedure. Opposite party No.3 admitted that the kidneys of the patient are damaged but denied that the complainants expressed to donate their kidneys and also denied that the patient was not treated for jaundice and that they did not provide treatment. Opposite party No.3 further submitted that they disconnected the ventilator only after the death of the patient and admitted that the hands, legs and head of the patient were tied and she was in a coma state and several tubes were connected to the body of the patient and any single disorderly movement would damage the entire treatment and submitted that there is no negligence or deficiency in service on their part.
Opposite party No.3 submitted that after admission and byepass surgery of the patient, anti malarial treatment was started on the 4th day of operation itself and the omitting complained was only a side effect of anti malarial therapy and that Malaria was treated adequately and Pancytopenia was due to Septicaemia. Opposite party No.3 submitted that the problem of kidney was only due to low BP and septic shock and submitted that authoritatively kidney transplantation and dialysis are not answers and relied on SURGERY OF THE CHEST 6th edition edited by David C Sabiston Jr. M.D. published by WB Saundurs Co. and CARDIAC SURGERY 3rd edition published by Chruchill Living Stone. Opposite party No.3 denied that nasal bleeding was not treated and submitted that ENT Surgeon Dr.Krishna Kishore attended to the patient and that Nasal Packing is the mode of treatment for nasal bleeding which was given to the patient even before the arrival of the ENT surgeon. The opposite parties admitted that the patient developed complications like malaria, jaundice and septicaemia and submitted that jaundice was not due to infection or defective sterilization and usually jaundice comes as a result of contaminated syringes takes a 3 months after exposure and in the present case, jaundice developed in less than 10 days of the surgery due to malaria or blood transfusion. The opposite parties also denied the allegation that they changed the dates on the lab report and submitted that the dates of the report are entered in many places and changing one date of one report would not in any way help doctors. Opposite parties submitted that the relatives of the patient pleaded that they have no money to cremate the body and even the Deputy Mayor of Visakhapatnam came and requested the hospital authorities on behalf fo the complainant not to conduct post mortem on the dead body and brought along with them a large number of people and started agitation in front of the hospital and in front of the Deputy Mayor, hospital authorities agreed to give concession of Rs.50,000/- taking only the cost of the material and medicines and submitted that inspite of best treatment, the patient developed complications and died. The opposite parties submitted that the complainants lodged a complaint to D.M. and H.O and also to Medical counsel regarding the death of the patient and a detailed enquiry was conducted by the committee comprising of Superintendent, KGH, Deputy Superintendent, KGH, Professor and Head of Dept., Head of Dept. of C.T.Surgery, KGH, D.M. and H.O., Visakhapatnam on 09-7-2003 and the case sheet and all investigations, progress report and death summary were all submitted for the purpose of enquiry to Medical council of India and also the Indian Medical Council, New Delhi conducted an enquiry on 11-2-2005 and the opposite party attended the enquiry and the very fact that no action was taken by anyone of the authorities clearly show that there is no truth in the allegations of the complainant and submitted that there is no deficiency in service or negligence and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A12 and B1 to B11 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to pay jointly and severally a compensation of Rs.2,00,000/- besides costs of Rs.5,000/-.
Aggrieved by the said order, the opposite parties preferred F.A.No.567/2011 whereas the complainants preferred F.A.No.568/2011 dissatisfied with the award of the District Forum.
The brief point that falls for consideration is whether there is any negligence on behalf of the opposite parties and if the complainants are entitled to the relief sought?
Complainants 2 to 6 are the daughters of first complainant and complainants 7 and 8 are the sons. It is the first complainants case i.e. his wife, one Smt.S.Atchayamma, complained of chest pain on 25-2-2003. He immediately took her to one Mr.P.Ramana Rao, M.D. Assistant Professor of Cardiology, KGH, Visakhapatnam. On thorough clinical examination, he suggested her to undergo tests i.e. Thread Mill test, Ultrasound test, Blood test, Urine test, ECG and x-ray. The complainant again approached the said Dr.P.Ramana Rao with the test reports and the doctor suggested Angiogram and conducted the same at Apollo hospital and stated that the main valve in the heart was blocked upto 60%. The complainant admitted his wife on 08-3-2003 at Apollo hospital for byepass surgery but thereafter he was informed by Dr.A.N.Srinivasa Rao that the patient should undergo byepass surgery at Care Hospital, Visakhapatnam and that there is a package for Rs.80,000/- with 12 days hospitalization.
On 10-3-2003 the patient was admitted for coronary by pass surgery which was conducted on 13-3-2003. After the operation, the patient was shifted to ICU and the complainant gave the following sequence of events as follows:
âTableâ
It is the complainants case that the patient developed post operative complications on 15-3-2003 with high fever on 16-3-2003 and 17-3-2003 with omittings on 18th March, 2003 and on 20-3-2003 she developed nasal bleeding with low B.P. and she was attended to by an ENT doctor. On 23-3-2003, she was diagnosed as having jaundice and on 25-3-2003 she developed sepsis and went into coma and died on 27-3-2003. Ex.A6 is the discharge summary issued by Care Hospital wherein the cause of death was stated to be CAD âPost CABG, Epistaxis, Malaria, Septic shock, Pancytopenia, acute renal failure, metabolic acidosis
It is the appellants/opposite parties case that the patient being a woman and having left main value stenosis, 100% cure cannot be promised and submitted that the operation was conducted on 13-3-2003 and admit that the patient complained of omittings and motions on 16-3-2003 and submit that a Physician was attending continuously on the patient and even took help of an ENT specialist, Dr.Krishna Kishore. In fact, when the complainants requested the opposite parties to arrange for Dr.Gnaneshwar Rao, General Physician, KGH hospital, Visakhapatnam even he was allowed to visit the patient and he attended to her on 26-3-2003. Anti malarial treatment was started on the patient on the fourth day of operation and omitting was side effect of the anti malarial therapy and Malaria was treated adequately with the necessary drugs and Pancytopenia was due to Septicemia. The problem of renal failure was also due to low B.P. and septic shock and submitted that there is no deficiency in service on their behalf and they took all necessary care and caution in the treatment of the patient.
Ex.A1 is the coronary angiogram report issued by Apollo hospital dated 08-3-2003 which shows good L.V. function and a 60% block as stated by Dr.Ramana Rao. Ultra sound scan of the whole abdomen was done on 09-3-2003 shows that the renal function was normal and the kidneys were also normal. The carotids study also shows normal function. The blood reports and blood investigations as reflected in the discharge summary, Ex.A6, dated 27-3-2003 show that the blood tests done on 12-3-2003 are all normal. It is not in dispute that the patient was admitted for Cardiac byepass surgery. It is also not in dispute that the patient developed Pancytopenia reflected in Ex.A8 and the date 24-3-2003 has been corrected as 26-3-2003. Even otherwise, it is an admitted fact that the patient had contracted Malaria. In the deposition of Dr.P.V.Satyanarayana, he clearly stated that the deceased had Malarial fever in the post operative period and that the deceased got Malaria due to mosquito bite. The hospital record shows that the deceased developed jaundice during the post operative period and the witness also volunteered that Malaria can cause jaundice. Ex.B4, case sheet shows that on 17-3-2003 i.e. 4 days after the operation, the patient was given treatment for Malaria and Resochin tablets were prescribed. The investigations done also confirm the existence of Malaria and thereafter the patient developed jaundice on 25-3-2003 which is shown in Ex.B4.Septicemia caused renal failure and the patient ultimately died on 27-3-2003 and though the appellants/opposite parties deny that there was any negligence in their treatment and submitted that they have given the best post operative care but have not given any specific reasons as to how the patient who underwent a coronary byepass surgery with 60% block in the main valve could develop Malaria, jaundice and ultimately died of septicaemia and renal failure. The Apex court in Savitha Garg v. National Heart Institute reported in Supreme Court and National Commission on Medical Negligence and Insurance under Consumer Protection= IV, (2004) CPJ 40 (SC) emphasized that the burden of proof shifts to the doctors when there is a prima facie case to prove that treatment was done according to standard normal procedure. In the instant case, there is a prima facie case which shows that the patient died due to Septicemia within two weeks of the surgery conducted by the opposite party hospital. The patient was 50 years old, her coronary angiogram report did not express any major risks, her L.V. function was normal, she had normal renal function as reflected in her ultra sound scan of the abdomen, her blood investigations prior to the surgery were also showed normal results and she developed omittings which later depicted that the patient suffered from Malaria, Septicemia or infection of the blood and it is the for the opposite parties to explain as to how the patient who did not suffer from any high risk medical ailments before the surgery ultimately died within two weeks of the surgery with septicaemia. Merely stating that the patient is a woman and has left main stenosis is not a specific ground for the sequence of events and the post operative complications that followed. It is for the hospital and the doctors to explain as to how a cardiac patient developed Malaria which further led to sepsis and renal failure in the intensive care unit of their hospital. The very fact that the patient contracted Malaria in the ICU evidences low hygiene conditions in the opposite party hospital. It is not as if the patient died of cardiac complications for which she was admitted in the opposite party hospital. To reiterate, she was admitted for cardiac surgery but died within two weeks of sepsis in her blood which clearly evidence post operative complications which only the doctors could explain and in the instant case they have not been able to establish the same.
The learned counsel for the complainants relied on the decision of the National Commission reported in 2005(6) ALT 1 (NC) (CPA) in SHEELA HIRBA NAIK GAUNEKAR v. APOLLO HOSPITALS LTD., CHENNAI AND ANOTHER wherein it was held that doctors and staff should have shown more alertness in looking after the patient during the critical time and held that there was deficiency in service in post operative card and awarded compensation. Keeping in view all the aforementioned reasons and judgements of the Apex Court, we are of the considered view that there is negligence on behalf of the opposite parties and we confirm the order of the District Forum with respect to negligence. However, the District Forum has observed that the amount towards loss of affection cannot be awarded. We rely on the decision of the National Commission in III (2010) CPJ 164 (NC) in JOHNSON THOMAS and ORS. v. BISHOP VAYALIL MEDICAL CENTRE and ORS. in which the National Commission discussed the amount of compensation that can be awarded when there is medical negligence. In the instant case, the District Forum has awarded an amount of Rs.2,00,000/- with costs of Rs.5,000/- and observed that the complainants claimed loss of mothers love and loss of consortium is not maintainable before the District Forum. We note that this observation of the District Forum cannot be sustained, keeping in view the judgement of the National Commission in III (2010) CPJ 164 (NC) and therefore we are of the view that the complainants are entitled for compensation towards loss of companionship, love and affection. We observe from the record that the patient who died is the wife of the first complainant and the mother of complainants 2 to 8 and we are of the view that the first complainant lost the love and affection of his wife and the children lost the love and affection of their mother for which they are entitled to a further compensation of Rs.3,00,000/-. The decision on which the counsel for the complainants relied, in that case, the patient who died was working and contributed Rs.6,000/- towards her family whereas in the instant case, the patient was a house wife and a woman of 50 years old and hence the prayer claiming compensation is excessive. Therefore we are of the considered view that to meet the ends of justice, an amount of Rs.3,00,000/- towards loss of love and affection can be granted and the order of the District Forum is modified directing the opposite parties to pay an amount of Rs.5,00,000/- instead of Rs.2,00,000/- together with costs of Rs.10,000/-.
In the result appeal, F.A.No.567/2011 filed by the opposite parties is dismissed and the appeal, F.A.No.568/2011 filed by the complainants is allowed in part modifying the order of the District Forum and directing the opposite parties to pay an amount of Rs.5,00,000/- instead of Rs.2,00,000/- together with costs of Rs.10,000/- to be paid within four weeks from the date of receipt of this order.