Smt. M. Shreesha, Honble Member
Aggrieved by the orders in C.C.No.33/2007 on the file of District Forum, Srikakulam, opposite party preferred appeal, F.A.No.1384/2010 and the complainant preferred appeal F.A.No.501/2011. Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainants wife approached the opposite party on 11-4-2006 for her gynaec problem and opposite party after check up suggested that the patient should undergo operation. The complainant submitted that he asked the opposite party first to conduct Biopsy but the opposite party conducted operation on the wife of the complainant on 25-4-2006. The complainant submitted that his wifes position turned more worse and she suffered from Giddiness and waist pain etc., soon after the operation but the opposite party was on camp and the nurses attended on the patient and discharged on 30-4-2006. The complainant submitted that on the date of discharge, due to the failure of the operation conducted by the opposite party, his wife was attacked with paralysis and she was admitted in Simhadri Corporate Hospital at Visakhapatnam, who opined that this was due to the negligent operation conducted by the opposite party as she was a sugar patient. The complainant submitted that his wife died on 02-5-2006 and submitted that they approached the opposite party for advice and the opposite party advised to undergo operation without conducting prior tests like sugar, Biopsy etc. and also did not take consent letter. The complainant further submitted that he lost his life partner and his children became motherless because of the negligent and careless operated conducted by the opposite party. Hence the complaint for a direction to the opposite party to pay an amount of Rs.10,00,000/- towards operation towards loss of his wife and her earning together with costs of Rs.15,000/-.
Opposite party filed counter resisting the complaint. He admitted that the complainants wife approached him with Gynaec trouble and he conducted operation of Hysterectomy on 25-4-2006 and discharged the patient on 29-4-2006 and not on 30-4-2006 as alleged in the complaint. He denied the allegation that due to failure of operation, the complainants wife was attacked with paralysis and that he has not taken consent letter. Opposite party submitted that the complainants wife approached him with complaint of white discharge with irregular menstruation period and pain during menstruation period and that previously also she received treatment for the said problem from other hospitals and they advised surgery and therefore she approached him for surgery. Opposite party submitted he advised investigations and on seeing the report from P.J.Medical centre viz H.B.10.4 Gms, Blood group A+, Urine album-Nil, Sugar-Nil etc. he advised hysterectomy operation. Opposite party further submitted that he has taken consent from the patient on 25-4-2006 and he also explained the risk involved in the surgery and after consent and acceptance from the patient, he sent for anesthetic check up and thereafter posted for hysterectomy operation. The surgery was conducted successfully and she was discharged from the hospital on 29-4-2006 with directions and suggestions for post operative care. Opposite party submitted that he was not aware as to what happened to the patient later and submitted that he discharged his duty with utmost care and caution and that there is no deficiency in service. Opposite party further submitted that the complainant approached the Forum without issuing any notice and suppressing the true facts and that he has not paid any amount to him for surgery and it was conducted free of cost on the recommendation of a known person and there is no consideration involved and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A5 and B1 and B2 and C1 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite party to pay Rs.1,00,000/- to the complainant towards compensation together with costs of Rs.5,000/- and Advocates fee was fixed at Rs.1,000/-.
Aggrieved by the said order, opposite party preferred appeal, F.A.No.1384/2010 and the complainant preferred appeal F.A.No.501/2011. Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The facts not in dispute are that the complainants wife approached the opposite party on 11-4-2006 with a gynaec problem and was diagnosed to be suffering from chronic cervicitis and dysfunctional uterine bleeding and was advised to undergo Hysterectomy. It is also not in dispute that the complainants wife was operated on 25-4-2006 for Hysterectomy and she was discharged on 29-4-2006 and it is the complainants case that the patient later developed convulsions and he admitted her into Simhadri Corporate hospital on 30-4-2006 where she died on 2-5-2006 due to cardiac arrest and brain haemorrhage. It is the complainants case that it was only because of the negligence in the conduction of Hysterectomy, that his wife developed convulsions on 30-4-2006 and that preliminary tests were not taken like conduction of Biopsy prior to the operation.
It is the opposite partys case that they have even taken a consent letter and done all the preliminary investigations like CBP, urine albumin, sugar etc., and anaesthetic check up prior to the hysterectomy operation. It is also the opposite partys case that she was discharged in a stable condition and thereafter it is not in his knowledge as to what happened to the patient.
The contention of the complainant that no consent letter was not taken and that he and his wife were not willing for the operation to be conducted is unsustainable in the light of Ex.B1. Ex.B2 is the case sheet and discharge summary of opposite party hospital wherein the date of admission is given as 25-4-2006 and date of discharge as 29-4-2006. Hysterectomy was performed and she was asked to come back for review after 15 days. The progress sheet also reveals that a pre anaesthetic check up was done and page 3 of the progress sheet dated 25-4-2006 at 9.30 a.m. under pre operative instructions and informed consent for VH-TAH was also taken. In page 4 of the operation notes, it is stated that vaginal Hysterectomy was done under general anaesthesia and the patient was conscious and coherent and the line of treatment is clearly given till the date of discharge i.e. 9.00 a.m. on 29-4-2006. Thereafter the record does not show that the complainants wife has come for review or approached the opposite party doctor for any further complications. However, the material on record/Ex.C1 shows that the patient was admitted into Simhadri hospital where the MRI showed that she was suffering from Haemorrhage. The progress sheet shows that she was under treatment till 02-5-2006 and thereafter she died of cardiac arrest. The case history of Simhadri hospital, shows that the patient had sudden seizures but it does not state that the present condition had any nexus with the hysterectomy operation. Doctor Y.P.Rao, who is the consultant in Simhadri hospital, deposed as P.W.1 before the District Forum. In his deposition, the said doctor, stated that her sugar levels were on the higher side and stated that Dextrose containing IV fluids can elevate the blood sugar levels and he does not have personal knowledge of the previous history of the patient recorded in the case sheet at the time of admission and cannot state that sugar and other tests were conducted by Simhadri hospital but however the glucometer showed that she was having 228 mg/pc at the time of initial examination. He clearly deposed that he did not inform the patients attendants that there was any negligence on behalf of the opposite party in conducting the operation. He further deposed as follows:
I cannot say whether there is any negligence on the part of the doctor who conducted the surgery previously, Laparoscopic procedures are minimally evasive. I cannot say whether there is any nexus in between the death and previous surgery. Death of the patient is due to âCardio Respiratory arrest secondary to acute large intra cerebral Hemorrhagic infract/Hemorrhagic i.e. Hemorrhagic brain. I cannot say whether there is any nexus in between the brain Hemorrhagic and Hysterectomy operation. It is true that the death is not due to increase of sugar levels. Brain Hemorrhagic is acute neurological event. It is true that Ex.X1 is not containing my hand writing and not on my dictation. Witness volunteers that treatment was given on my advise. She was given steroids by Decadron and methyl Prednisolonee and it may increase sugar levels. I have perused Ex.B1. It is true that sugar levels of values will vary from one laboratory to another. On perusal of entire record i.e. Ex.B1 and Ex.X1, I cannot say whether there is any negligence or not in this particular case.
Re-Examination: By STN for complainant:
In generally in non diabetic also administration of steroids may increase the blood sugar levels.
From the aforementioned deposition, it is clear that the doctor who examined the patient in the second hospital never stated that there was any negligence on behalf of the opposite party doctor even after perusal of the entire record i.e. Ex.B1 and C1. In the cross examination by the advocate for the opposite party, he deposed that he cannot say whether there was any nexus between the brain haemorrhage and hysterectomy and further stated that death is not due to increase of sugar levels. It is pertinent to note that the doctor was not cross-examined by the complainant or his counsel to ascertain any nexus between the hysterectomy operation and the patients death.
We rely on the decision of the Apex court and National Commission, with reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:
âThe duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requiresâ
In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held thatâ
âThe approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge      of their duties. In general, a professional man owns to his client    a duty in tort as well as in contract to exercise reasonable care in giving advise or performing servicesâ.
Supreme Court then opined as under:
âThe skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligenceâ.
We also rely on the decision of Apex Court in Kusum Sarma vs. Batra Hospital reported in 2010 Mad. LJ-3-512 in which the Apex Court held that negligence cannot be attributed to a doctor as long as he performs his duties with reasonable skill and competence and exercised the skill as per normal medical parlance. We also rely on the decision of the Apex Court in Vinitha Ashok vs. Lakshmi Hospital reported in 2001 CPJ 797 in which the Apex Court clearly laid down as follows:
â Thus in large majority of cases, it has been demonstrated that a doctor will be liable for negligence in respect of diagnosis and treatment inspite of a body of professional opinion approving his conduct where it has not been established to the Courts satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible.â
In the absence of any expert opinion, that there is nexus between the hysterectomy operation and the subsequent haemorrhage, and also taking into consideration that the patient was discharged on 29-4-2006, and never went back to the same opposite party doctor but died in Simhadri hospital on 02-5-2006 due to haemorrhage and cardiac arrest, we are of the considered view that the complainant has failed to establish any negligence on behalf of the opposite party doctor in the conduction of the hysterectomy operation on 25-4-2006 or in his line of post operative treatment from 25-4-2006 till the discharge i.e. 29-4-2006. There is no documentary evidence to substantiate that the opposite party did not act as per standards of medical parlance as stipulated by the Apex Court in the aforementioned judgements. Therefore, we are of the considered view that the complainant failed to establish that there is any negligence on behalf of the opposite party doctor.
In the result, FA 1384/2010 preferred by the opposite party is allowed and consequently the complaint is dismissed and F.A.No.501/2011 is also dismissed for the aforementioned reasons. No order as to costs.