Ch. V. Narasimha Rao Vs. Dr. K. Raja Rajeswari Proprietor of M/S Vignesh Nursing Home and Others - Court Judgment

R. Lakshminarsimha Rao, Member:

Oral:

1. The complainant is the appellant. He had taken his wife Ch. Pushpa Kumari to the hospital of opposite party No. 1 on 12.5.2002 with the complaint of stomach ache and paid an amount of Rs. 5,000 to the hospital opposite party No. 1for which no receipt stated to have been issued on the premise that it would be adjusted at the time of final settlement. Pathological examination was advised by the opposite party No. 1 at M/s. Sravanthi Diagnostic Centre where the pathology report was issued with the opinion that the patient was diagnosed with tuberculosis appendicitis/appendicular lump. The hematology report was issued by M/s. Vignesh Diagnostic Centre. The opposite party No. 2 opined the problem to be appendicitis and the opposite party No. 1 in her communication dated 14.5.2002 opined that the matted lump of intestines and appendix of the patient was gangrenous and could be removed in piecemeal only. The opposite party No. 2 conducted the surgery and thereafter he had not examined the patient. The opposite party No. 1 had not revealed the name and address of the opposite party No. 2. After the operation, the patient complained of unbearable pain and strange movements in her stomach and abdomen. The opposite parties explained the patient that it was post operational pain which is quite common and harmless. The next day, the patient developed low blood pressure and continuing pain. Blood was fetched by the complainant as required by the staff of the opposite party No. 1. On the third day of operation, the condition of the patient deteriorated alarmingly.

2. The hospital of the opposite party No. 1 is not equipped with advanced medical facilities. The opposite party No. 1 referred the patient to Apollo Hospital, Hyderabad where the complainant incurred an expenditure of Rs. 1,05,000 for treatment of his wife. Another operation was performed and it was diagnosed that the patient was suffering from peritonitis of intestine nearer to appendices. The physical examination and surgery at the hospital of the opposite party No. 1 did not reveal presence of perforation of intestines leading to peritonitis. The removal of appendices in pieces instead of in single bit indicates that the opposite party No. 2 was not in a position to identify clearly the structure/organ in the area as a result matted mass. As per the findings of doctors at Apollo Hospital and post operational complications show that the opposite party No. 2 wrongly diagnosed the condition to be appendicitis instead of appendicular lump which does not require any surgery. The histopathology report revealed that the patient was suffering from chronic granulomattic disease. Tuberculosis of appendices can be a possibility but not it can be considered with certainty.

3. The opposite party No. 1 resisted the claim stating that on physical examination of the patient she was found to have suffered from acute appendicitis and as such the opposite party No. 1 advised the patient to be examined by the general surgeon and also advised for CBP and CUE, ultra sonogram. The opposite party No. 2 after examining the patient came to the conclusion that she was suffering from acute appendicitis and advised for surgery. After explaining the risk of surgery, the opposite party No. 2 obtained consent of the patient and her attendants. Blood tests, RBS, DU, clotting time, bleeding time, HBS, Ag. HIV, etc., tests were conducted before performing surgery at 10.00 a.m. on 12.5.2003. After surgery, the oppose party No. 2 advised for biopsy of appendices at Sravanthi Diagnostic Centre on 12.5.2002. During the post-operative stage antibiotics like taxim and amicacin and anti bacterial such as metrozyl were administered to control the infection. Pain killers like Voveran and sedatives like fortwin and phenergan were given as and when felt necessary.

4. On 13.5.2002 the patient complained of hyperacidity and pain histac 1amp IV was administered and when she still complained of pain she was given half cc of fortwin and half cc phenergan, painkiller and sedative respectively. On 14.5.2002 the patient complained of severe abdominal pain. She had developed hypotension and later she went into respiratory distress. The opposite party No. 1 and her staff administered emergeny treatment. The patient was resuscitated and she responded to the emergency measures. At the request of the opposite party No. 2, Dr. Seshagirirao, Dr. Krishnam Raju were called and they examined the patient and came to the conclusion that the patient was suffering from respiratory distress due to septicemia or pulmonary embolism and the patient needed critical care and ventilatory support. Her attendants were advised to shift her to Apollo Hospital in ambulance accompanied by the staff of the opposite party No. 1 and doctor and staff of the Apollo Hospital.

5. The patient was treated at Apollo Hospital where gangrenous segment of bowl was reseated and ileostomy was done with colonic mucus fistula and expired five days after the second operation was performed. Tuberculosis of abdomen is a chronic disease. The patient gives a long history of chronic pain of abdomen and other gastrointestinal symptoms like loss of appetite. The patient was hale and healthy till she suddenly developed abdominal pain. The diagnosis of tubercular appendicitis could not be made before the operation that only after the operation as it would take three to four days for processing of any biopsy specimen. Clinical examination of the patient revealed acute appendicitis with peritonitis and her ultrasound examination revealed inflamed appendix. Apendicular lump was not diagnosed prior to surgery as normally it takes two to three days for an appendicular lump to form and the patient would suffer from abdominal pain for two to three days prior to formation of the lump.

6. The opposite party No. 2 contended that on clinical examination of the patient, she was diagnosed with appendicitis (perforated) with generalized peritonitis. The opposite party No. 2 is a visiting surgeon and after performing the surgery, he attended on the patient on 12.5.2002 at a call from the opposite party No. 1 and on 14.5.2002 along with three other doctors examined the patient. On 14.5.2002 the opposite party Nos. 1 and 2 and Dr. Krishnam Raju, Dr. Seshagiri Rao and Dr. Satyanarayana took a decision to shift the patient to a tertiary hospital for further management. The biopsy report confirmed TB as suspected by the opposite party No. 2. The TB was diagnosed only some days after surgery.

7. The opposite party No. 3 has contended that the District Forum has no jurisdiction to try the complaint and that there was no deficiency in service on the part of the opposite party No. 3. The opposite party No. 2 had not given any notice concerning the claim as per Clause 8.1 of the insurance policy.

8. The complainant was examined as PW1 Exs. A1 to A11 are marked. On behalf of the opposite parties, RWs 1 to 3 were examined. Exs. B1 to B10 marked.

9. The District Forum has dismissed the complaint holding that the opposite party Nos. 1 and 2 discharged their duty and the biopsy report was made available only after the death of the patient.

10. Feeling aggrieved by the order of the District Forum, the complainant has preferred the appeal contending that the opposite party Nos. 1 and 2 had not provided appropriate treatment even after they suspected tuberculosis basing on the spots on the small intestine and that the opposite party No. 2 who performed surgery did not visit the patient to know the developments of the patient.

The points for consideration are:

(1) Whether there was any deficiency in service on the part of the opposite parties?

(2) To what relief?

Point No. 1

11. The complainants wife, Smt. Pushpa Kumari approached the opposite party No. 1 with the complaint of abdominal pain and vomiting since the morning of 12.5.2002 and she was admitted to Vignesh Nursing Home of the opposite party No. 1 at 8 a.m. on the same day. On examination of the patient, the first opposite party diagnosed the complainant with acute appendicitis. The opposite party No. 1 advised for blood, urine and ultra sound tests. The opposite party No. 2 also diagnosed the patient with acute appendicitis. The blood test and urine test were conducted on the same day, i.e., 12.5.2002 by Vignesh Diagnostic Centre and the Ultrasound Test was done by Vignesh Nursing Home of the first opposite party. The blood test report had shown normal values whereas the urine test report has shown the bleeding time and clotting time as 2.00 and 5.00 respectively. The radiologist issued “Ultra Sound Abdomen Report” with his impression as under.

“Ineolor contoured hypo choc area of 52x34 mm with probe tenderness noted in vi iliac fossa, 3.4 cm below Lower Pole of vk and above iliac event inflated Appendix”.

12. The opposite party No. 1 had not considered the tenderness in right iliac fossa of the patient at the time they decided to get performed appendicitis on the patient. The opposite party No. 2 in his cross-examination has stated as under:

“They have given a report under Ex. A4, there is probe tenderness in right iliac fossa and they have put a? Inflamed appendix and advised to correlate clinically. The report is only opinion expressed by radiologist”

13. The opposite party No. 1 had been negligent to refrain themselves to correlate the findings of the radiologist.

14. The Honble Supreme Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC). The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal and Dhirajlal (24th Ed. 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-442):

“Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. II (2007) CPJ 25 (SC) E.S.I. CORPORATION.

15. In Bolam v. Friern Hospital Management Committee, WLR 586, it is held as follows:

“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”.

16. Lord Wilberforce in Kooragang Investment Pvt. Ltd. v. Richardson and Wrench Ltd., 1982 AC 462, stated:

Negligence is a method of performing an act instead of it being done carefully, it is done negligently. Negligence in common parlance mean and imply failure to exercise the care expected of a reasonable prudent person. It is the breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most cases it is caused by heedlessness or inadvertence by which the negligent party unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something , in short, it is want of attention and doing something which a prudent and reasonable man would not do (Blacks Law Dictionary).

17. It is held by the Apex Court in IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56 in Savita Garg (Smt.) v. Director, National Heart Institute, that when 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.

18. The second opposite party has stated that he had not noticed any lump and it would take 2 to 3 days for the lump to develop. The opposite party No. 1 had the knowledge of the appendicular lump in the abdomen of the patient and she had not discussed it with the opposite party No. 2. The line of treatment adopted by any of the doctors cannot be found fault with. It is the lapse on the part of the opposite party No. 1 not to have brought the existence of the notice of the appendicular lump to the notice of the opposite party No. 2 which ex facie indicates negligence on her part. In the reply notice dated 13.8.2002, the first opposite party has stated as follows:

“The blood and urine test results and the ultrasound report indicated that your clients wife was suffering from appendicular lump.”

19. As against this finding of the opposite party No. 1 it is pertinent to mention here the observation of the opposite party No. 2 in his counter which is extracted as under:

“This opposite party correctly diagnosed the case acute perforated appendices with peritonitis. It is not a lump. It requires emergency operation. TB is diagnosed only some days after the surgery, after biopsy reports were available.”

20. The first opposite party had not exercised due diligence while administering the drugs when the patient complained of constant pain in her abdomen immediately after the surgery was completed. After surgery when the patient complained of abdominal pain, the first opposite party has administered the medicine such as, inj. Histac 1mp IV and the patient still complained of pain, the first opposite party instead of consulting the second opposite party had administered ½ cc of Fortwin and ½ cc of Phenegran IM. Phenegran is a sedative and the abdominal pain of the patient had not been subsided even on the 14th May, 2002 leading to complications such as hypotension which consequently resulted in respiratory distress. All through till the respiratory distress gained its footage, the first opposite party had not bothered to consult the opposite party No. 2 who performed the surgery and the three doctors, Dr. Krishnam Raju, Dr. Seshagiri Rao and Dr. Satyanarayana. The opposite party No. 1 thus rendered negligent medical service to the patient.

21. The deceased was aged about 22 years at the time of her death. She was only a house wife. The deceased was suffering from the tuberculosis in its advanced stage. The negligence on the part of the opposite party No. 1 by itself cannot be made a sole platform for assessing the amount towards compensation against the opposite party No. 1.While awarding compensation, several factors such as age and income of the deceased besides other parameters like uncertainty of life and fluctuation in the income of the deceased, etc., as also the degree of negligence of the opposite party No. 1 contributing to the death of the deceased have to be taken into consideration. The deceased was suffering from gangrenous perforated caecum with peritonitis, septicemia with septic shock ARDS. The complainant had not examined any of the doctors of Apollo Hospital who treated his wife till she expired. Taking into consideration of all these facts, we award an amount of Rs. 1,50,000 as compensation to the complainant on account of negligence exhibited by the opposite party No. 1 in administration of the treatment to the deceased husband of the complainant. Therefore, the findings recorded by the District Forum are liable to be set aside.

22. The complainant all through has been negligent in prosecuting the case. Sravanthi Diagnostic Centre has issued report dated 12.5.2002. The complainant has contended that the report was issued on 12.5.2002 itself. Sravanthi Diagnostic Centre had not mentioned on which date the specimen was received and on which date it had prepared the report. It had issued a certificate dated 16.5.2002 marked as Ex.B5 and copy of entry register dated 12.5.2002 marked as Ex.B6. The certificate was issued stating that it would take 3 to 4 days for processing of any ordinary biopsy specimen and that the date 12.5.2002 was mentioned in the report to mean that the histopathalogical picture of specimen was received on that particular day. No way in the certificate it is mentioned that the report was issued on a particular day. The copy of entry register was filed perhaps in order to show the date on which specimen was received. It is not clear when the report was issued and whether the result of the report was conveyed to the opposite party No. 1 during the period of the patients stay at the hospital of the opposite parties. For the lapse on the part of Sravanthi Diagnostic Centre, the complainant had not taken any steps to implead it as a party.

23. The opposite party No. 3 has admitted that the opposite party No. 1 had obtained professional indemnity policy for medical establishments vide policy No. 612800/46/0100316 for the period from 15.10.2001 to 14.10.2002. The objection of the opposite party No. 3 is that the opposite party No. 1 had not informed about the claim in terms of Clause 8.4 of the insurance policy and that deficiency of service on the part of the opposite party No. 2 is not covered by the opposite party No. 3 in terms of the insurance policy. In other words, the opposite party No. 3 contends that the insurance policy was issued in favour of the opposite party No. 1 and that the opposite party No. 1 had not complied with the Clause No. 8.4 of the insurance policy by not giving the intimation of the claim. The opposite party No. 3 has not denied the receipt of letters Exs. B1 and B3 whereunder intimation of the claim was made by the opposite party No. 1 to the opposite party No. 3. The opposite party No. 3 is vicariously liable for the payment of compensation awarded against the opposite party No. 1. The deceased was survived by her daughter baby Harshita who is entitled to the amount awarded.

In the result, the appeal is allowed. Order of the District Forum is set aside. Consequently, the complaint is allowed directing the opposite party Nos. 1 and 3 jointly and severally, to deposit an amount of Rs. 1,50,000 in any Nationalized Bank in the name of daughter of the deceased Baby Harshita. The complainant is entitled to withdraw interest accrued on the deposit till Baby Harshita attains majority. The costs throughout the proceedings from the stage of filing the complaint are quantified at Rs. 4,000. Time for compliance four weeks. The complaint against the opposite party No. 2 is dismissed. No costs.

Appeal allowed.