Oral Order : (Per Smt. M.Shreesha, Honble Member )
Aggrieved by the order in C.D.No.146/2004 on the file of District Forum, Kurnool, the complainant preferred F.A.No.1059/2007 and opposite parties preferred F.A.No.1046/2007.
The brief facts as set out in the complaint are that the complainant is a 15 year old minor boy studying 9th class and on 6.6.2002 on account of stomach pain he was admitted into the Government General Hospital, Kurnool for treatment, the hospital doctors examined the patient and the opposite party no.2 conducted appendicitis operation after which the complainant went into an unconscious state and after a couple of days he came to consciousness but his hand, mouth, legs were paralysed. The neurology doctors concluded that the complications arose due to operation of appendicitis and excess dosage of anesthesia. On the advise of doctors the complainant joined in Viswabharathi Private Nursing Home, Kurnool for better treatment, but did not recover. The complainants parents spent Rs.1 lakh towards the treatment and shifted him to NIMS for better treatment, but so far the complainant did not recover. The complainants parents spent more than Rs.2 lakhs for their son only because of the negligent attitude in conducting operation. Hence the complaint seeking direction to the opposite parties to pay Rs.2 lakhs towards medical and other expenses, to pay Rs.2 llakhs towards mental agony and to pay costs of the complaint.
Opposite party no.1 filed counter stating that the complainant was admitted in the hospital on 6.6.2002 at 10.45p.m. and operated for appendicitis on 7.6.2002 at 7.30 a.m. They contend that the patient developed Brady chaia Hypotension during the operation which was detected and treated successfully. The patient was then shifted to Acute Medical Care (A.M.C.) and the complainant recovered and was in semi conscious state and responding to oral commands on 100% oxygen support and necessary surgical treatment was continued , but surprisingly the patient absconded from the hospital on second post operative day in the evening at about 7 p.m. on 8.6.2002. The opposite party contends that it is the complainants mistake to have absconded from the hospital and the complaints given by the complainant demanding compensation were dismissed by the Government after due enquiry. The patient was not charged any amount for this operation or for post operative care. There is no negligence on behalf of the attending doctors and the patient absconded from the hospital without the permission of the doctors, so he himself is responsible for the present condition.
Opposite party no.2 filed counter denying that he conducted operation on the complainant and that the complications arose due to negligence in operation and excess dose of anesthesia. The operation was conducted by Dr.Radhakrishna, Asst. Professor of Surgery, Unit IV under spinal anesthesia given by Dr.Dhananjaya who was tutor in Anesthesia Department. As per the case sheet when the complainants condition was improving he absconded from the hospital on 8.6.2002 and joined in Viswabharathi Hospital, Kurnool and submits that that the doctors never failed in attending to the duties towards the complainant and it was the complainant who absconded from the hospital without informing the hospital authorities and joined in the Viswabharathi Hospital , Kurnool for which they cannot be made liable.
The District Forum based on the evidence adduced i.e. Exs.A1 to A1 to A8 , X1 and X2 and B1 to B3 allowed the complaint in part against opposite party no.1 and dismissed it against the other opposite parties. The District Forum awarded an amount of Rs.2 lakhs towards compensation, Rs.50,000/- towards mental agony and Rs.20,000/- towards costs against opposite party no.1.
Aggrieved by the said order, the opposite parties preferred F.A.No.1046/2007 and complainant preferred F.A.No.1059/2007 .
The appellants/opp.parties contend that the respondent/ complainant absconded from the hospital even while he was under the treatment on his own volition and failed to adhere to the norms of the treatment at the hospital and he is solely responsible for his state of health after he absconded and that they are not liable for any act of the respondent/complainant to join in Viswabharathi Super Specialty hospital and thereafter in NIMS who treated him and discharged him with an advise that there should be conservative management with physiotherapy. They further contend that the District Forum erred in not taking into consideration the opinion of the expert committee.
The learned counsel for the appellant/complainant submitted that the District Forum erred in dismissing the complaint against the other opposite parties without appreciating that the entire treatment took place under the care of opposite party no.2 and he is also liable for the negligence and the counsel further contended that the District Forum also erred in holding that the cause of action against opposite party no.3 is barred by limitation without appreciating the continuing cause of action against the opposite party no.3. The learned counsel further contends that if the loss of earnings of the complainant from the age of 20 years is calculated for 50 years on the basis of wages for labour, then it would be Rs.27,35,500/- and Rs.3 lakhs towards maintenance since one attainder is compulsory and to award damages of Rs.30,37,500/- for loss of earnings and future maintenance of the complainant .
The first respondent in F.A.No.1059/2007 who is also the appellant no.1 in F.A.No.1046/2007 filed written arguments.
Now we address ourselves to whether there is any negligence on behalf of the opposite parties and if the complainant is entitled to the relief sought for?
On perusal of the material on record we observe that it is the case of the complainant, who is a 15 years old boy suffered from stomach ache and on 6.6.2002 approached opposite party no.2 who conducted appendicitis operation on him after which the complainant went into unconscious condition and became paralysed from mouth, hands, legs and the same was found to be due to administration of excess dosage of anesthesia during appendicitis operation. The facts not in dispute are that the complainant thereafter joined in Viswabharathi Super Specialty Hospital, Kurnool and subsequently he joined NIMS hospital for treatment and he till date lives the life of a vegetable. It is the case of the opposite parties that the complainant absconded unauthorisedly from the hospital on 8.6.2002 at 7 p.m. and only because of his irresponsible conduct of absconding, there was discontinuity of necessary treatment and there is no negligence on their behalf . Ex.A1 is the discharge summary card in which date of admission being 17.10.2002 and date of discharge is 21.10.2002 stating that the patient is having brain damage and he is in persistent vegetative state. This has been issued opposite party no.1 hospital. It also includes another discharge card wherein the date of admission is mentioned as 6.9.2002 and date of discharge is 28.9.2002 in the name of the complainant wherein it is stated that the diagnosis of Hypoxic Ischemic Encephalopathy. Ex.A7 is the letter dt.10.3.2003 issued by Dr.K.Narasaram in which he confirms that the patient is suffering from Hypoxic Ischemic brain damage and this occurred subsequent to appendicectomy under spinal anesthesia . Ex.A8 is the C.T. scan report dt.20.7.2002 in which it is stated that the brain shows âDILATATION OF ALL VENTRICLES AND PROMINENT SULCI. The contention of the appellants that no amounts are paid is unsustainable in the light of Ex A5 consisting two receipts issued by the Government General Hospital for Rs.40/- and Rs.15/-. Ex.A6 is three out patient tickets in the name of the complainant.
The learned counsel representing the appellant hospital submitted that the District Forum did not take into consideration an expert committee report and submitted in his written arguments that it is not a domestic enquiry or departmental enquiry where an opportunity should be granted to the parties before concluding. We find this observation biased and untenable since once an enquiry is being held, necessarily the complainant also has to be heard and moreover the Committee of this experts has no statutory force and is not binding on this Commission and this case is being decided entirely on merits. The learned counsel also drew our attention to the medical literature wherein appropriate dosage of anesthesia stated and its demonstration which is as follows:
âAnoxia : Decreased amount of oxygen in organs and tissues-Page 99
Hypoxia: Oxygen deficiency
Encephalopathy: Any disease of brain
Meno appendix: Mesentry of appendix
Mesentry: A double layer of peritanium attached to the abdominal wall and enclosing in its fold a portion or all of one of the abdominal viscera conveying to its vessels and nerves
Ischemia: Local anemia due to mechanical obstruction to blood supply
(Steadmans Medical Dictionary)
As per anesthesia notes on 07.06.2002 3 CC of 0.5% heavy sensoreain was injected (as per book Nunn Utting Brown âGeneral Anesthesia- Page 1091 and Synopsis of Anesthesia Page 677) and thereafter Iry Fortwin â Phenargan was also given as premedication anticipatory brady cardia or cardiac arrest. As per physiology in anesthetic practice by Robert K.Stocting Page 246 speaks about treatment of reflex mediated brady cardia â anti cholinergic are the drugs of choice for treating intra operative brady cardia, particularly that resulting from increased para sympathetic nervous system activity. Administration of atropine 15 to 60 Microng/kg, the maximum increase in heart rate produced by atropine indicates the degree of control exerted by vagus nerve on the sinoatrial node. In young adults, in whom the vagel tone is greatest, the influence of atropine on heart rate is most marked. In a healthy male adult of 70 kg. the dosage is about 1.05 mg to 4.9 mg.
According to Pharmacology and physiology in Anesthetic Practice Second edition by Robert K.Stoelting Page 246, âTreatment of reflex mediated bradycardia.â â Anticholinergic drugs are the drugs of choice for treating intra operative brady cardia. Particularly that resulting from increased para sympathetic nervous activity (Vagal activity) Administration of Atropine 15-70 micro gram/kg. i.e. for normal adult female of 50 kg. around 750 micro gram ile. 0.75 mg. to 3500 micro gram i.e. , 3.5 mg. In a healthy male adult of 70 kg. the dose in 1050 micro gram i.e. 1.05 mg. to 4900 micro gram i.e. 4.9 mg. (1000 micro gram =1 mg. )â
The learned counsel further contended that Whey Phenargan was given to the patient and an young adult like this patient Vagal tone is very high and it is called Brady Cardia and cardiac arrest and when this patient developed Brady Cardia the drug Atropine of 3 mg. was given. It is submitted by the opposite parties that after giving the spinal anesthesia the patient was given inj. Fortwin (15 mg.) and inj. Phenergan (25 mg.) before the surgery to control moderate pain. Atropin 3 mg. was given only after the patient developed brady cardia. hence the dosage was within the prescribed limits.
The learned counsel for the complainant also filed medical literature in support of his case and relied on Drugs in Anaesthesia and Intensive Care , Second Edition in which dosage of Atropine is stated as follows:
âAtropine may be administered intramuscularly or intravenously in a dose of 0.015-0.02 mg/kg. The adult oral dose is 0.2 â 0.6 mg. 3 mg. is needed for complete vagal blockade in adultsâ.
The learned counsel for the complainant also relied on the medical dictionary for definition of Anoxia stating that Anoxia means decreased amount of oxygen in organs and tissues i.e. less than the physiologically normal amount. Oxygen deficiency which is more precisely hypoxia in disease of brain encephalopathy and in the instant case only because of improper discharge of anesthesia that there was an adverse reaction and post operative complications because of which the patient developed anoxia i.e. lack of oxygen to the brain and the hospital did not oxygenate him to the required levels. He also relied on the following medical literature from chapter 7 of Pharmacological Basis of Therapeutics by Goodman and Gilmans in which it is stated as follows:
âCardiovascular System. Heart. The main effect of atropine on the heart is to alter the rate. Although the dominant response is tachycardia, the heart rate often decrease transiently with average clinical doses (0.4 to 0.6 mg) . The slowing is rarely marked, about 4 to 8 beats per minute and is usually absent after rapid intravenous injection . There are no accompanying changes in blood pressure or cardiac output. This paradoxical effect once was thought to be due to central vagal stimulation, however, cardiac slowing also is seen with muscarinic receptor antagonists that do not readily enter the brain. Studies in human being show that pirenzepine is equipotent with atropine in decreasing heart rate; its prior administration can prevent any further decrease by atropine. The data suggest that the decreased heart rate may result from blockade of M1 receptors on postganglionic parasympathetic neurons ; this relieves the inhibitory effects of synaptic ACh and increases the release of transmitter (Wellstein and Pitschner, 1988)
Larger doses of atropine cause progressively increasing tachycardia by blocking vagal effects on M2 receptors on the SA nodal pacemaker. The resting heart rte if increased by about 35 to 40 beats per minute in young men given 2 mg. of atropine intramuscularly . The maximal heart rate (e.g. in response to exercise) is not altered by atropine. The influence of atropine is most noticeable in healthy young adults, in whom vagal tone is considerable . In infancy and old age, even large doses of atropine may fail to accelerate the heart. Atropine often produces cardiac arrhythmias, but without significant cardiovascular symptoms.
With low doses of scopolamine ( 0.1 or 0.2 mg) the cardiac slowing is greater than with atropine. With higher doses, cardioacceleration occurs initially, but it is short lived and is followed within 30 minutes either by a return to the normal rate or by bradycardia.
Adequate doses of atropine can abolish many types of reflex vagal cardiac slowing or asystole - for example from inhalation of irritant vapors, stimulation of the carotid sinus, pressure on the eyeballs, peritoneal stimulation or injection of contrast dye during cardiac catheterization. It also prevents or abruptly abolishes brady cardia or asystole caused by choline esters, acetylcholinesterase inhibitors, or other parasympathomimetic drugs , as well as cardiac arrest form electrical stimulation of the vagus. The removal of vagal influence on the heart by atropine also may facilitate AV conduction.
From the afore mentioned medical literature filed by both sides and the arguments put forward and on perusal of material on record we observe that no test dose of anesthesia was given to the patient prior to the commencement of anesthesia to see if he had reacted well to the dosage. The case sheet in the pre anesthetic checkup reveals that the check up was done at 5 p.m. on 7.6.2002 which is subsequent to the operation. Even after the reaction and post operative complications it is no where stated in the case sheet as to the amount of oxygenation and what steps were taken to save the life
On perusal of Ex.B2 case sheet of opposite parties we observe that at 1 p.m. on 8.6.02 the patient is unconscious and not responding to painful stimuli and by 6.45 p.m the patient is semi conscious responding to painful stimuli and it says âcontinue the same line of treatment. On the reverse it dt.6.6.2002 and 7.6.2002 which is the actual date of operation at 10 a.m. it says case ready from OT with RL -300 ml injection Dopamine inj. added in 200 ml. drip, from 10 a.m. to 11 a.m. I.V.Fluids were given, below which the consent for anesthesia for surgery was taken . It is pertinent to note that this consent does not explain the risks pertaining to administration of anesthesia and cannot be termed as informed consent. We rely on the judgement of Apex Court in Samira Kohli Vs. Dr. Prabha Manchanda and Another reported in (2008) 2 SCC 1 wherein it is held as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
The above said points mentioned by the Apex Court are applicable to this case as it was held that the consent taken by the doctors should be an âInformed Consent i.e. the patient should be in a conscious state while giving the consent and the patient should have been informed of all the risks pertaining to the operation or the procedure to which he is consenting. In the instant case we observe from the record that in Ex.B2 the complainants consent was taken without informing him of all the risks involved in administration of anesthesia. Ex.X1 case sheet is that of Viswbharathi Super Specialty Hospital and the date of admission shows 8.6.2002 in which the history is written as âpost operative appendiscectomy Hypoxic Encephalopathi and also mentioned complete line of treatment given by date wise including the progress notes as detailed in Ex.B2. The discharge record of NIMS clearly states that the date of admission is 29.3.2003 and date of discharge is 1.4.2003 and as per this discharge record it is stated as follows:
â A 14 yr. old boy who underwent appendicectomy in June 2002 at GGH/ Kurnool developed hypoxic encephalopathy per operative( the details of which are not known) brought to NIMS for further evaluation and management â âadvised conservative management and physiotherapyâ .
The NIMS case sheet also says that the neurologists opinion is that the diagnosis is Hypoxic Ischemic Brain Damage following appendi- cetomy with spinal anesthesia. We are of the considered view that that these case sheets and discharge summaries clearly establish that there was post operative complication and the complainant suffered from brain damage i.e. Hypoxic encephalopathy following appendicectomy with spinal anesthesia. Dr. Narasaram deposed before the District Forum as PW.1 on behalf of the complainant that he treated the patient in Government General Hospital, Kurnool from 6.9.2002 to 28.9.2002 and 17.10.2002 to 21.10.2002 . He has also treated the patient in Viswabharathi Hospital, Kurnool from 8.6.2002 to 12.7.2002 and the patient was in coma state because of Hypoxic Encephalopathy i.e. decreased supply of oxygen to brain. The possibility for this complication would be due to cardiac arrest or shock. He submits that he is not aware as to how many days the patient was in Government General Hospital and submits that there is possibility for the patient to go into coma if oxygen supply is not there for about half an hour in post operative stage.
Dr.A.S.Keerthi also deposed on behalf of the complainant stating that she is doctorate of Medicine in Neurology in NIMS hospital .She stated in her cross examination that in case of post operative complications such as cardiac arrest or brain damage, oxygenation i.e. administration of oxygen is highly essential along with medication. RW.1 Deposed that there was expert committee constituted by the Collector and the report was submitted on 24.12.2002 to the Superintendent, Govt. General Hospital, Kurnool and that he cannot recollect whether during the said enquiry the said patient was put in any clinical examination. Dr. B.Ramachandra Reddy who is the Professor of Department of Medicine, Kurnool Medical College deposed saying that they formed the Committee and opined that as per the case sheet entry on 7.6.2002 the said patient developed cardiac arrest during the operation and that their Committee doctors did not examine the anesthetist who attended on the patient during the said operation and that the last entry in the case sheet was at 6.45 p.m. and there is reference in the case sheet that the patient absconded after 7 p.m and if the patient had continued the line of treatment he would have got rid of the complications after three days. Dr.Uma Maheswar, Prof. of Anesthesia, Govt. General Hospital, Kurnool deposed before the District Forum that under anesthesia, cardiac arrest may occur because of the decrease volume of fluid administration, Intubation has to be given within 3 minutes of cardiac arrest if the patient was not already on oxygen administration and if this is not done the death of tissues will occur. Dr. A.Lakshman Rao who worked as Asst. Professor of Surgery in Govt. General Hospital, Kurnool deposed that in the sheet the time from when the patient was absconding from the hospital is not stated. It is also not stated whether the patient was given oxygenation immediately after the development of complications.
The learned counsel for the first respondent/opposite party who is representing the Government General Hospital contended in his written arguments that the responsibility of the second respondent herein cannot be fastened without impleading the surgeon who has performed the operation and without giving him an opportunity to submit his defence. If that is the ground raised by the counsel they ought to have taken steps within time to implead the surgeon who performed the operation. To reiterate it is the hospital and the chief surgeon who decides the team of doctors and assistants who should perform the operation and it is not the patient who chooses the team. Keeping this in view we rely on the judgement of the Apex Court in (2004) 8 SUPREME COURT CASES 56 in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE wherein it is held as follows:
âwhen a prima facie case is established, it is the duty of the opposite parties to prove their case, since it is only the opposite parties who are aware of the exact line of treatment that has been given to the patient. It was also held by the Apex Court that once a claim petition is filed and the complainant has successfully discharged the initial burden that the hospital/clinic/doctor was negligent and that as a result of such negligence, the patient died, then in that case, the burden lies on the hospital and the doctor concerned, who treated the patient, to show that there was no negligence involved in the treatment.
It is held by the Apex court that law regarding non joinder of necessary parties that consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short-circuit the matter or to defeat the claim on technical grounds
Heavy burden cannot be placed on the patient or family members/relatives to implead all those treating doctors who treated the patient or nursing staff to be impleaded as parties.
Burden lies on the hospital and the concerned doctor, who treated the patient to prove that there was no negligence involved in the treatment. In both contingencies i.e. âcontract of service and âcontract for service, courts have taken a view that the hospital is responsible for the acts of their permanent staff as well as for the staff, whose services are temporarily requisitioned for treatment of patients. Therefore, hospital can discharge burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died. With this judgement, the entire burden cannot be placed on the complainant to prove negligence and it is the duty of the hospital also to satisfy that there was no lack of care of diligence. The hospitals are institutions, people expect better and efficient services, if the hospital fails to discharge its duties through its doctors being employed on job basis or employed on contract basis, it is the hospital that has to justify and by not impleading a particular doctor will not absolve of its responsibilityâ.
In view of the above judgement it is clear that the burden of proof shifts on the doctor and his team to state the exact line of treatment given to the patient and mere non joinder of any party cannot be termed as bad. Hence the contention of the learned counsel for first respondent/appellant i.e. Superintendent, Govt. General Hospital that the surgeon has not been made a party and the non joinder of the surgeon is bad is unsustainable. In the instant case the opposite parties have not discharged their burden of explaining the exact line of treatment given to the complainant after he developed complications and more over the time when the complainant had left the hospital is also not given in the case sheet and we are of the considered view that it is the duty of the hospital and its staff to take care of the patient and it is strange as to how the patient without the knowledge of the staff has left the hospital, for the hospital to term it as âabsconding.
The contention of the learned counsel representing the Hospital that the case of Savitha Garg is a totally different aspect where the doctors are employed on job basis and it is the Hospital to justify the acts of its doctors and hence cannot be applied to this instant case, is untenable, since the doctors admittedly are working in the Hospital of the appellants and the hospital is liable for the acts of the doctors. The further contention of the appellants that there is no contract between the Hospital and patient is equally untenable. The very admitted fact that the patient was operated upon in the appellants hospital itself is a form of contract between the patient and the Hospital . Hence taking umbrage that the patient had âabsconded from the hospital which resulted in the complications does not hold good in the instant case since the patient cannot just disappear from a Government hospital without the knowledge of any of the staff or attendants or doctors and the hospital is equally answerable in explaining as to how this has taken place. The hospital is vicariously liable for all the acts of its doctors. It is not the patient who chooses that which team of doctors should operate upon him. It is the doctor who choses his team and therefore he is liable for the entire procedure performed and the operation conducted on the patient as held by the Apex Court in Savitha Garg case .
To reiterate, the case sheet does not state that a test dose of anesthesia was given as pre operative precaution to assess its acceptability to the patient and the case sheet also does not state whether oxygenation was given immediately as required according to standard procedures of Medical parlance. Therefore we are of the considered view that all the opposite parties are jointly and severally liable and the District Forum has erred in making opposite party no.1 alone liable. Hence appeal F.A.No.1046/2007 is dismissed and F.A.No.1059/2007 is allowed in part modifying the order of the District Forum making the opposite parties 2 and 3 also liable along with opposite party no.1. The prayer of the complainant that he is entitled to expenses of Rs.30,37,500/- for loss of earning and maintenance cannot be allowed since the main prayer in C.D.No.146/2004 is for Rs.2 lakhs towards medical expenses and Rs.2 lakhs towards mental agony and for other costs. Taking into consideration that a 15 years old young boy studying 9th class and had gone in for an appendicitis operation but remained like a vegetable thereafter, we are of the considered view that the compensation awarded by the District Forum can be enhanced to Rs.2,00,000/- to meet the ends of justice, for the amount of mental agony that parents and the patient himself underwent and would undergo in future, cannot be undermined .
In the result F.A.No.1059/2007 is allowed in part modifying the order of the District Forum and directing the opposite parties 1 to 3 jointly and severally to pay Rs.2 lakhs towards medical expenditure, Rs.2 lakhs towards compensation with interest at 12% on both these amounts from the date of operation i.e. 7.6.2002 till the date of realization and Rs.20,000/- towards costs. Order of the District Forum is modified as indicated above.
F.A.No. 1046/2007 is dismissed . No costs.