Dr. K. Dakshinamoorthy, M.S., Counsultant Surgeon Nagai Hospital Vs. Amutha and Another - Court Judgment

The 1st Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.4,50,000/- towards the loss of life, alongwith compensation Rs.25000/- and cost of Rs.5000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.31.1.2005 in OP.No.73/2001.

This petition coming before us for hearing finally on 03.02.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:

M. THANIKACHALAM J, PRESIDENT

1. The 2nd opposite party, while resisting the claim of the complainant/ 1st respondent, in OP.No.73/2001, on the file of District Forum, Nagapattinam, failed, and the consequence is the appeal.

2. The petitioners husband, by name Elangovan, hereafter after called patient, who suffered from piles, approached the 1st opposite party, for treatment, since he promised, that the piles could be cured, with minor surgery, and accordingly the patient had undergone, minor surgery in the first week of August 2000, for which he had paid Rs.3000/-. Within two days, from the date of operation, the patient developed acute abdominal pain, including pus formation, for which, as directed by the 1st opposite party, patient contacted and consulted the 2nd opposite party, in his nursing home on 10.8.00. At that time itself, the condition of the patient was critical. The patient was admitted at the hospital of the 2nd opposite party, as advised for surgery, where he was not properly treated whereas by the follow-up treatment by the 2nd opposite party, the condition of the patient became worse.

3. The patient was moved to Jipmer hospital, where inspite of their best treatment, he collapsed on 27.8.00. At Jipmer hospital, doctors have given opinion, that the entire mishap was due to wrong operation, and improper treatment by an unqualified doctor for piles, for which both the opposite parties should be held responsible. Claiming compensation of Rs.5 lakhs, notice was issued, for which there was no proper reply, complying demand, thereby the complainant is constrained to file a case, for the recovery of a sum of RS.4,75,000/-, as compensation from the opposite parties.

4. The 1st opposite party, remained absent, set exparte.

5. The 2nd opposite party, admitting the operation done by the unqualified 1st opposite party, as well as the treatment was given by him, opposed the complainant, interalia contending that when the patient came to his hospital, in a critical condition, he was treated with utmost care, examining him clinically, as well as otherwise, that in order to drain the pus formation, on 11.8.00, under spinal anesthesia, Laparatomy was performed, clearing the pus, that the diagnosis revealed he was suffering from Gross Peritonitis with Septicemia and Right Scrotal Abscess, that despite the best treatment and aggressive treatment given, there was no improvement, and therefore he was referred to Jipmer Hospital for further treatment, which cannot be termed as negligent act, or deficiency in service, that while performing the surgery, as well as treating the patient post-operatively, he had exercised all reasonable care and skill, though he was brought to him in a critical condition, consequences to the operation done by an unqualified doctor, who can be described as Quack, and that the opposite party is not responsible for the death or anyother problems, derived by the patient, due to the surgery performed by the 1st opposite party, he cannot be held responsible, thereby praying for the dismissal of the complaint.

6. The District Forum, straining itself verymuch, writing an elaborate judgement, but not touching the point in issue, had directed the 1st opposite party to pay a sum of Rs.1,11,500/-, and the 2nd opposite party to pay a sum of Rs.2,66,500/- in all a total sum of Rs.3,78,000/-, as per the order dt.31.1.2005, recording a finding, as if the 2nd opposite party is the cause for the death of the patient, since according to its assessment, septicemia and other infection became uncontrollable, as well as he failed to perform proper surgery, for the complaint reported to him, which is impugned by the 2nd opposite party alone, on various grounds.

7. In order to appreciate the findings against the 2nd opposite party, we have to remember the pleadings in the complaint, though as recorded by the District Forum, we cannot take the complaint as encyclopedia. It is also true, that the pleadings are not strictly, to be construed in a cases coming under the Consumer Protection Act, and there may be some relaxation, but not complete ignorance, or going against the pleadings, while letting evidence, or while giving findings, which is done in this case, by the District Forum, as far as the 2nd opposite party is concerned, and that is why, we are constrained, to point out the pleadings hereunder.

8. In the entire complaint, to our minute meticulous reading, we are unable to find any specific allegations, regarding the medical negligence against the 2nd opposite party, except some stray lines, where it is said “improper treatment given by the 2nd opposite party”. It is also not explained, what kind of improper treatment was given by the 2nd opposite party, resulting deterioration of the patient health, followed by the termination of his life. But, on the other hand, the entire complaint would state, that the 1st opposite party alone, had committed negligent act, being an unqualified person, and the consequent result, was the suffering of the patient, which was cured to some extent, by the 2nd opposite party, that cannot be labeled or termed as negligent act, under the medical jurisprudence.

9. In paragraph 1 of the complaint, it is said, the 1st opposite party, performed a minor surgery, and within two days, from the date of operation, the deceased developed acute pain in his abdomen, and also development of pus formation. It is further said, the 1st opposite party had not shown any care, for the patient. It is also said in paragraph 1 “his condition was critical” when he had been to the 2nd opposite party for consultation, or treatment, on 10.8.00. In paragraph 2, it is said “But because of the operation done by the first respondent who seems to have been not a qualified doctor and also the follow up treatment by the second respondent the condition of the patient became worse”. In paragraph 4 it is said “The deceased died only because of the operation done by the unqualified doctors and improper treatment given to the patient subsequently”. In paragraph 5, it is said, “The first opposite party who is unqualified doctor is more responsible for improper operation conducted by him to the deceased. The further treatment given by the second opposite party after consultation are also not upto the standard”. Thus we are able to see, many accusation regarding the medical negligence, only against the 1st opposite party, and not specific accusation regarding the medical negligence or deficiency in service, against the 2nd opposite party. The prayer reads “pass an award for a sum of RS.4,50,000/-, towards the loss of life because of the wrong operation by unqualified doctor and a sum of Rs.25000/- towards the mental agony and a sum of RS.5000/- towards cost of this petition” . It is an admitted fact, that the 1st opposite party alone is the unqualified person, though he is called doctor. It is not the case of the complainant, either in the complaint, or in the affidavit or at the time of hearing, the 2nd opposite party is not a qualified doctor, and his qualification as that of M.S., is not under challenge, and therefore he should be construed as a qualified surgeon. Coupled with the above pleadings, and the prayer, if we prima-facie analyse the case, it is manifest, that the complainant has claimed the compensation, only on the basis of the wrong operation, by unqualified doctor, that is the 1st opposite party not for surgery, performed by the 2nd opposite party, which facts were not properly considered by the District Forum.

10. In order to prove the averments in the complaint, filing of proof affidavit is contemplated under the Consumer Protection Act. The District Forum, in its order observed that though the complaint has not pleaded any details about the negligent act committed by the 2nd opposite party, by filing a detailed proof affidavit, she has exposed, the professional negligence, and deficiency meted out, by her late husband. Our effort to find out such an affidavit, ended in vain, except a counter affidavit filed by the complainant, denying the averments in the written version, which cannot be the proof affidavit, to prove the averments in the complaint. In this case, the complainant, instead of filing proof affidavit, as seen from the records, examined herself as PW1, and if at all that evidence has to be taken, not as recorded by the District Forum incorrectly, there is a proof affidavit, which had thrown much light upon the issue, exposing the defect committed by the 2nd opposite party, thereby showing the District Forum, has not even gone through the records properly. Ignoring all these, for the time being, now let us see, whether the 2nd opposite party had committed any negligent act, while treating the patient, from the date when he was admitted in the hospital.

11. Admittedly, the patient had undergone a surgery in the unqualified hands of the 1st opposite party, in the early days of August 2000, and date is not given. The so called surgery, instead of curing or improving the problem, as admitted by the complainant, created problem developing acute pain in the abdomen, as well as pus formation. The complainant, though admitted in the complaint, that the 1st opposite party had performed a surgery, she had an audacity before the Forum, to say that the 1st opposite party has not performed any surgery to her husband. When her attention was drawn to the averments in the complaint, she reiterated, that no surgery was performed, and if stated so, in the complaint, that is incorrect. Further, she would contend, there was second surgery also, in the hospital of the 2nd opposite party, which is not the case of the complainant, which is proved to be false, by the case record. Thus it is demonstrated, the complainant is not worthy of credence, and her evidence is to be ignored totally, since it contains only falsity, even against the averments made by her in the complaint, which was not properly appreciated by the District Forum. In this view, if the oral evidence of PW1, is ignored as unworthy, then there is no evidence to prove the averments in the complaint, and the affidavit filed available being one, filed as an answer to the written version, not in support of the complaint.

12. The complainant is not a qualified person, and her evidence cannot be taken as expert evidence. When a submission was made before the District Forum, that she not proved the alleged medical negligence against the 2nd opposite party, no expert evidence was let in, the District Forum said oral evidence of PW2 is sufficient, and it is an expert opinion or evidence, which is to be scanned here.

13. Dr. Jagadeesan (PW2) performed surgery to the patient, in the Jipmer Hospital on 26.8.2000, at about 4.30 p.m. His evidence, instead of improving the case of the complainant, to our assessment, supports the case of the 2nd opposite party alone. As seen from his deposition, when he was confronted with the case records, maintained by the 2nd opposite party, he refused to give any answer, informing that on the basis of the records, he cannot answer any question. If really the treatment given by the 2nd opposite party, as recorded in the case record, was defective atleast upto 21.8.2000, or was there any deviation of the protocol, nothing would have prevented PW2, from pointing out the same, as an expert, being a qualified surgeon, seeing the documents. Further, nowhere he has stated, that the treatment given by the 2nd opposite party, to the patient, was not as contemplated, or he has deviated from the established procedure of treating the abdominal pain, or the connected problems, though he would state, that the condition of the patient, who had undergone lapartomy, may be fit for colostomy also. It is the further case of PW2, that for this patient, colostomy ought to have been done, instead lapartomy and this is the opinion and judgement of the doctors, which may vary from person to person, according to their presumption. If a doctor, upon clinical examination, had chosen a mode of treatment or way of treatment, which is also acceptable, that cannot be treated or taken as negligent act, though there may be other method of treating the patient, and this is the evidence given by PW2. Further, after the surgery performed by PW2, the patient expired, and therefore he should be treated as interested witness, since he has to protect his skin also, otherwise he will be blamed, as if he had committed negligent act, or deficiency in service.

14. The District Forum has given a finding, as if because of the improper care while, performing surgery by the 2nd opposite party, as well as not taking proper care, during the post-operative period, infection, septicemia occurred to the patient, resulting, further complication, ending his life. If that is proved so, we have to say ‘yes, and that is not the case here, as revealed by the record maintained by the 2nd opposite party, though it is incomplete or there is some manipulation, at the end of the case record, regarding the discharge, as whether the discharge was done on 21.8.00 or 24.8.00, as the case may be, which will not tilt the balance of the case, in favour of the complainant, since by that time, the patient was listed as “DIL” Risk IV, i.e., upper most risk. In this context, now we have to see the case records.

15. Ex.B2, is the copy of the case history or the record maintained during the treatment given by the 2nd opposite party, to the patient, commencing from 10.8.00 at 7.30 p.m., till 24.8.00. As seen from this record, as well as seen from written version also, there is some confusion regarding the date of discharge of the patient, from the hospital of the 2nd opposite party. In the written version paragraph 14 also, it is said that with the concurrence of the relatives of the patient, he was shifted on 21.8.00 at 7.30 p.m., and discharge summary, detailing the clinical condition of the patient, was given. But Ex.B3, makes it clear, even after 21.8.00, the 2nd opposite party treated the patient till 24.8.00, as disclosed in the certificate given under the heading “To whomsoever it may concern”, probably referral letter, wherein it is seen one Dr. Venkatachalam, had signed on 21.8.00. Taking this discrepancy, the District Forum has severely commented the 2nd opposite party, as if he had concocted the document, or changed the case record etc., and in our opinion, that has nothing to do with the alleged medical negligence, can be seen from the other parts of the case record, which is not challenged. Therefore, ignoring the date of discharge, whether it was 21.8.00 or 24.8.00, let us see, under what condition, the patient was brought to the hospital of the 2nd opposite party, and what kind of treatment he had given, and how his health condition was recorded and taken subsequently to the Jipmer Hospital.

16. The patient was admitted in the 2nd opposite party hospital on 10.8.00. As seen from the case record, after admission the 2nd opposite party diagnosed the problem of the patient as “Peritonitis”, and the opinion was given as DIL, that means, “Dangerously Ill Listed”. After admission, when he patient was taken for treatment, the bad condition of the patient was informed to the close relative of the patient, who acknowledged the same also. In the case record itself, it is said “patient was operated by an unqualified doctor, for piles, 10 days back”, further recording the patient was not only suffering, not passing motion, but also he was having other kind of problems. Further clinical diagnosis revealed that the patient was suffering “Gross peritonitis with septicaemia with Scrotal Abscess Rt.”. Here also the patient was rated as risk IV. Since the clinical examination alone has not revealed, what is the actual/ real problem in the abdomen, though it was serious the doctor decided to go for laparotomy, and informing the same, obtaining consent, the patient was prepared for laparatomy, and laparatomy surgery was performed, after administering anesthesia, as seen from the entry dt.11.8.00 at 11.30 a.m., under the heading ‘operation, which would indicate that thick purulent pus was drained from the peritoneal cavity and we quote as recorded by the doctor “Spinal Anaesthesia- Rt P.M incision/Rt.Scrotal Incison- Thick Purulent pus 1000 to 1200 cc in thePeritoneal Cavity- Intestines are inflamed and Oedematous Pan cake abdomen _ Peritoneal Toilet and Flank drains on either sides- Scrotal Abscess 300 to 350 cc- Thick pus drained- Sloughed Torson Testis Rt. Removed – Drain is left – Wounds closed in layers”. The 2nd opposite party has not touched the rectum, whether inside or outside, as the case may be, as per the case record.

17. On 11.8.00 itself, the patient was suffering from septicemia and it was diagnosed so, as seen from the entry dt.11.8.00. Only thereafter laparotomy was performed. The septicemia should have occurred to the patient, because of the injury inflicted to the rectum, by the 1st opposite party, for which the 2nd opposite party cannot be held responsible. The doctor, who attended the patient at 1.00 p.m on 11.8.00 also has noticed the presence, or patient suffering from septicemia, and noted in the case record, and only thereafter, laparatomy was performed. Therefore, it is impossible to say, that in the hands of the 2nd opposite party, the patient suffered septicemia or anyother kind of infection. The continuous treatment given by the 2nd opposite party, has not shown any improvement, as expected, and therefore he referred the patient to the Jipmer Hospital on 24.8.00, giving referral letter also. If at all the 2nd opposite party, treting or keeping the patient upto 24.8.00, can be faulted, since he attempted to cure the defect, despite the fact, the patient was critical, that does not mean, it is a negligent act, warranting deficiency in service. The 2nd opposite party, apprehending that colostomy, may cause any problem, probably not adopted that procedure, and when that was attempted by PW2, as expected, the patient collapsed, and therefore, the non-performance of the colostomy surgery, for draining the motion, cannot be faulted, as negligent act, or deficiency in service, as incorrectly observed by the District Forum.

18. After discharge from the 2nd opposite party hospital, whether it is on 21.8.00 or 24.8.00, admittedly the patient was referred to Jipmer Hospital, giving history, as seen from the records, and admitted at Jipmer hospital on 25.8.00, and the admission record indicates, the diagnosis was “ Rectal Injury with liver Cell Failure with Hepato Renal Syndrome in Septicaemia” for correcting or treating, the procedure suggested was Transverse Colostomy. While admitting the patient at Jipmer itself, it was reported by the complainant, or his relatives, that the patient was operated by a Quack, for piles, which is recorded “Operated by a quack for Piles on 8.8.00, developed fever and pain and distension of the abdomen and was admitted to Nagai Hospital on 11.8.00. Laparotomy done and pus in the peritoneal cavity drained. Developed jaundice on 21.8.00. Condition of the patient worsened and was referred to JIPMER on 25.8.2000”. The impression noted was “septicemia, secondary to rectal injury, as a complication to? Haemorrhoidectmy”. In the history of the patient also, it is noted, piles surgery was done by Quack i.e., by the 1st opposite party, and peritoneal cavity drained in a private hospital, i.e. by the 2nd opposite party, however the patient was septicemia. The operation record, maintained by PW2, or the Jipmer hospital, would indicate “Peritoneal cavity minimal adhesions – otherwise clean; Few pus flanks. Bowel healthy. Sigmoid colon, Rectum normal. No perforation made out from peritoneal side Per rectal examination- rent in the post wall of rectum” , thereby indicating there was no inside damage to the rectum, and outside damage should have been caused by the 1st opposite party. The 2nd opposite party did laparatomy, and had seen the rectum only from inside. It is not the case of the Jipmer hospital records, or PW2 that the laparatomy performed by the 2nd opposite party was erroneous, or it had caused any injury, leading to septicemia, or anyother complication, and infact, Dr. Jagadish has noted on 26.8.00, in the operation record “Peritonial cavity – minimal contamination – few pus flakes- otherwise clean – Bowel healthy- Sigmoid colon Rectum normal- No perforation in the rectum could be made out from the Peritoneal cavity- Per Rectal Examination: Rent in Post Wall of Rectum”. This observation would indicate, that the 2nd opposite party has not committed any mistake, while performing laparatomy, and infact in his judgement, he did the correct thing. The fact, he has not bestowed any attention to take out the motion, by performing colostomy, as submitted by the learned counsel for the comlainant cannot be taken as negligent act, since toileting was also done, as seen from the records. It is very specifically noticed, that no perforation in the rectum could be made out, from the peritoneal cavity, thereby indicating the 2nd opposite party is not the cause for the rectal injury, and that had caused only by the 1st opposite party. As afraid by the 2nd opposite party, when colostomy was attempted or performed, at Jipmer, as per the operation notes, at about 6.45 p.m., patient developed cardio respiratory arrest and despite their effort to revive, the patient died, declared so at 7.00 a.m, and the cause of death is given by the Jipmer Hospital as “Septicaemia due to Rectal Injury? Post Haemorroidectomy wit liver cell failure and Hepato Renal Syndrome” and for these devolopments, or problems, or the defects, it is not proved, the 2nd opposite party was responsible. As indicated by us elsewhere, when the patient came to the 2nd opposite party hospital, he had septicemia, rectal injury, which should be the cause for septicemia, as noted by Jipmer hospital, which had complicated further, for which the 2nd opposite party cannot be held at all responsible, since the steps taken by him to, control the infection not demonstrated as faulty one.

19. The District Forum, without considering the nature of treatment given, by the 2nd opposite party, which procedure, not faulted or proved to be negligent act, based upon the evidence given by PW2, colostomy ought to have been done, fixed liability, upon the appellant, and we are unable to agree, that the 2nd opposite party has not performed proper treatment. Further, though it was urged, there was poor postoperative care at 2nd opposite party hospital, which was the cause for developing jaundice, and septicemia, they remained as dead letters, since there is nothing on record to show, that the alleged defect committed by the 2nd opposite party, had caused to the patient jaundice, or septicemia, whereas there is enough materials by way of admission, as well as the case record also, that by the act of the 1st opposite party also, septicemia caused, leading to other complications, including jaundice, for which the deceased patient, and the 1st opposite party alone should be faulted, and not the 2nd opposite party.

20. The learned counsel for the appellant, inviting our attention to certain decisions, as quoted in the written arguments, submitted that a surgeon selected a method of surgery, according to his judgement, and experience, may not be negligent, he being the best judge, under the situation. In this case, since the patient was brought to him under a critical situation, and on clinical examination, he felt the priority should be given for draining the pus formation, in the cavity, which he did, thereby cleaning the bowel also, which was certified by Jipmer Hospital. For the above said reasons, we are constrained to say that the approach of the District Forum, that the complainant has no access of medical literature or no doctor came forward to give evidence against the fellow doctor, will not come to the aid of the complainant, in finding fault with the surgery performed by the 2nd opposite party, that too by supplying materials, which are all not pleaded by the complainant herself. Thus, viewing the case from all possible and probable angle, in our considered opinion, the 2nd opposite party has neither committed negligent act, nor deficiency in service, and therefore the direction issued against the 2nd opposite party deserves to be erased, for which the appeal is to be accepted, being meritorious.

21. In the result, the appeal is allowed, order of the District Forum in O.P.No.73/2001 dt.31.1.2005, is set aside, in respect of the appellant/ 2nd opposite party alone, and the complaint is dismissed, as far as 2nd opposite party is concerned, ordering the parties to bear their respective costs.

Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.