Dr.B.Lakshman, Dr.Lakshman’s Institute of Orthopaedics Vs. A. Susheela - Court Judgment

Oral Order ( As per the Smt Merla Shreesha, Member)

Aggrieved by the order in C.D.No.181 of 1998 on the file of District Forum, Karimnagar, opposite party preferred this appeal.

The brief facts as set out in the complaint are that the complainant was admitted in opposite party hospital on 8.8.1997 for the treatment of leg fracture and was treated upto 19.8.1997 and failed to look after her properly after the operation resulting in formation of pus and other postoperative complications. The complainant submits that on 19.8.1997 she was discharged in spite of still feeling the pain without giving a discharge certificate. Immediately, she approached Dr.B.Shankar at Jagitial after seeing her seriousness he referred her to Prof.S.Vijaya Rama Rao who in turn referred to Dr.Bixapathi at Sathya Kidney Centre and opined that 3kgs pus was formed and that jaundice had developed and also kidney problem. The complainant submits that all these complications arose only because of the negligence of the opposite party who took Rs.10,000/- towards treatment charges but did not take care after the operation resulting in serious post operative complications. Hence, the complaint seeking directions to the opposite party to pay Rs.1,50,000/- towards expenditure, Rs.3 lakhs towards compensation and costs of Rs.5,000/-.

Opposite party filed counter admitting that the complainant was in their nursing home from 9.8.1997 for treatment of fracture of left leg sustained by her on account of fall in her house. There was swelling, pain and tenderness over the left trochantric region of the complainant and the fracture was confirmed after taking an x-ray. She was advised to undergo operation and after pre-operative investigations, on 11.8.1997 at 1.00 p.m. the operation was taken up under spinal anesthesia administered by Dr.Rajeshwar Rao. The complainant did not have any fever after the operation and on 17.8.1997 developed loss of appetite, sleeplessness and decrease in urine output and hence for better treatment a local physician Dr.B.C.Thirupathi Rao, M.D., investigated her case and diagnosed that the complainant developed mild jaundice and mild urima. On 19.8.1997 the sutures were removed as the wound healed well and the complainant requested for discharge. Therefore, she as discharged on 19.8.1997 with an advice to consult a physician at Jagitial and the complainant did not visit the opposite party thereafter. After discharge, the complainant consulted Dr.B.Shankar at Jagitial and the investigations revealed that the complainant was suffering from hepato renal syndrome and was referred to Dr.Ram Bhoopal who is a Nephrologist at Satya Kidney Center even Dr.B.Shanker did not find any fever and noted the temperature was normal which excludes any kind of infection as on 19.8.1997. The complainant who aged 63 years developed mild kidney problem and therefore she was referred to Satya Kidney Center and this has nothing to do with the operation done by the opposite party for trochantric fracture.

The discharge summary of Satya Kidney centre and the copy of letter dated 16.9.1997 of Dr.Vijaya Rama Rao show that the complainant developed Oliguria much after the operation and the symptoms of the infection i.e., left lower limbs odamatis and swelling were also found. Therefore, the wound was opened for dressing purpose and the puss was drained. The infection of the wound was traced on 22.8.1997, 11 days after the operation and this is an unexpected complication and it varies from 1.7% to 16.9% and the opposite party relied on page 1736 of authoritative textbook of Rock Wood and Green Titled “Fracture in Adults” 4th Edition 1996.

1. A patient population including patients in the seventh, eight and ninth decades with decubitus ulcers, bladder infections and cardiovascular disease;

2. The prolonged operating time that may be necessary for unstable fractures, which increases the risk of infection;

3. A disoriented patient, who may remove the bandage and contaminate the wound;

4. The proximity of the wound to the perineum;

5. Increase incidence in Hepatorenal failure because decrease immunity and disorientation.

The operation was done on 11.8.1997 and there is no proof that 3kgs pus was found after the operation and infection of the wound might have developed subsequently and was nothing to do with the carelessness and negligence of the opposite party herein and hence opposite party seeks dismissal of the complaint with costs.

The District Forum based on the evidence adduced, Exs.A1 to A13 and Exs.B1 and B2 and allowed the complaint directing the opposite party to pay Rs.1,50,000/- with interest @ 9% per annum from 21.3.1998 till the date of realization.

Aggrieved by the said order opposite party preferred this appeal.

The learned counsel for the appellant/opposite party submitted that the opposite party is a qualified orthopedic surgeon having 25 years experience and performed more than 45,000 surgeries and that the complainant was admitted on 9.8.1997 with trochantric fracture of the left femur and the opposite party performed the surgery on 11.8.1997. The surgery was successful and only on 17.8.1997 the complainant developed loss of appetite and sleeplessness for which necessary blood investigations were done which revealed that Serum Creatinine was normal i.e., 1.3 mg/dl., minimal elevation of blood urea 54% and Serum Bilirubin was 3.3mg/dl. These are only minor problems and was nothing to do with the surgery performed by the opposite party. The learned counsel for the appellant/opposite party contended that the general physician Dr.Tirupathi Rao, M.D., also visited the patient on 18.8.1997 and advised line of treatment which was followed and on 19.8.1997 the sutures were removed and wound healed well. Subsequently the complainant was under the treatment of Dr.B.Shanker for three days during which the serum Bilirubin and Blood Urea indicating hepato renal failure and that burden of proof lies on the complainant to establish the service rendered by the opposite party suffers from negligence. Prof. Dr.S.Vijaya Rama Rao, who is a retired professor, HOD Orthopedics deposed the reasons for infection and low body resistance and that post operative infection rate is a known complication range from 2% to 10%. The learned counsel for the appellant further contended that PW2 deposed that the factors for low body resistance are 1. Low Hemoglobin; 2. Previous history of any jaundice or recurrent urinary, throat infection; 3. Recurrent urinary infection. The age is also one reasonable factor, He further deposed that “it is very difficult to say that improper sterilization is the only cause in this case delayed infection can occur even after 5 years due to various factors not yet understood”. The opposite party was taken of proper precautions and there were no signs of hepato renal syndrome and there was no nexus between the surgery and anorexia and the post operative infection. Hence, the District Forum erred in awarding compensation of Rs.1,50,000/-.

The facts not in dispute are that the complainant was admitted in the nursing home of the opposite party on 9.8.1997 and was treated for inter-trochanteric fracture of the left femur sustained by her on account of fall in her house. An X-ray was taken and it is an admitted fact that there was a fracture and that the opposite party on 11.8.1997 performed a surgery. It is the case of the complainant that after the surgery proper post operative care was not taken by the opposite party and she was discharged on 19.8.1997 without a discharge certificate and without her pain subsiding. The complainant submits that she had to approach Dr.B.Shanker, Jagitial who had seen her and referred her to Prof. Dr.S.Vijaya Rama Rao who in turn referred her to Dr.Bixapathi at Satya Kidney Center who opined that 3 kgs puss was formed, jaundice and kidney failure. It is the further case of the complainant that all these post operative complications developed only because of the negligence of the opposite party. It is the case of the appellant/opposite party that the patient was discharged on 19.8.1997 on her request and she was advised to consult a physician at Jagitial for management of medical problems and thereafter she did not contact the opposite party. The appellant/opposite party in their counter contend that the complainant consulted Dr.B.Shanker at Jagitial on 19.8.1997 who diagnosed the ailment as hepato renal syndrome and referred to nephrologist at Satya Kidney Center and contend that Dr.Bixapathy at Satya Kidney Centre did not note that the complainant suffered from any fever on 19.8.1997 which excludes infection of any kind. It is the case of the opposite party that pus of 3kgs was not substantiated by the complainant by way of any documentary evidence. Ex.A11 is the discharge summary issued by Dr.S.Vijaya Rama Rao of Satya Kidney Centre on 17.9.1997. Ex.A12 is the letter of Dr.S.Vijaya Rama Rao dated 16.9.1997 addressed to Dr.Bixapathy stating that this patient was referred to Dr.Rambhupal with hepato renal failure.

PW2 Dr.S.Vijaya Rama Rao who is a retired professor and Head of the Department of Orthopedics deposed that the complainant was admitted on 21.8.1997 under the care of Dr.Rambhupal and was a known hypertensive septicemia patient. Her urine output was low and jaundice was present. She was operated on 10.8.1997 on her left hip and puss was removed from the operated wound on 22.8.1997 and she was kept on continuous irrigation of the wound. Subsequently, she improved and was discharged on 17.9.1997. The doctor deposed that the reasons for infection may be:

1. Theatre sterilization,

2. Low body resistence of individual. Septicemia is the result of puss in the blood stream.

Hepato renal failure is secondary to septeciemia and further deposed that the wound infection is one of the known complications of any operation and post operative infection rate is 2% to 10%. The factors to low body resistance are low hemoglobin, previous history of any jaundice or throat infection, recurrent urinary infection. The opposite party was examined as RW1 and he deposed that pre-operative investigations showed that there was raised Serum Bilirubin and raised serum creatinine. They came to the conclusion that she was suffering from mild liver and renal failure. As it is necessary for emergency operation he explained the patient condition about the post operative complications. He submits that they accepted for the operation.

We observe from Ex.B1 which is the patient consent that entire consent form is left blank and has not even been duly filled but contain ailment of the patient and signature of the guardian. This consent does not show whether the post operative complications and the condition of the patient has been explained to the complainant and the attendants at all. In fact we rely on the judgment of the

The Honble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda and Another reported in (2008) 2 SCC 1 opined that it is for the doctor to decide, with reference to the condition of patient, nature of illness and the prevailing established practices as to how much information regarding the risks and consequences should be given and how they should be couched in the best interest of the patient. A doctor acting accordingly with normal care and in accordance with a recognized medical practice, held cannot be said to be negligent merely because a body of opinion takes a contrary view.

The Supreme Court summarised the principles relating to ‘consent 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.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.

In the instant case also we observe from the record that there is no informed consent. To reiterate the consent form of the patient that has to fill has left blank which confirms that the patient has not been informed about her condition and about the post operative complications that may arise. Exs.A10 to A13 show that the complainant was admitted under the care of Dr.Rambhupal on 9.8.1997 with complaint of hepato renal failure, Serum creatinine being 3.0% ans Serum Bilirubin 4.7%. She was operated on 10.8.1997 for entertrochantrice fracture of left femur and left leg was swollen and inflamed the suture line was opened and treated with antibiotics and blood transfusion. The wound was laid open thoroughly washed and continuous irrigation of wound carried out for three days. Ex.A11 which is the discharge summary of Satya Kidney Center shows that the complainant was admitted on 21.8.1997, date of operation is 22.8.1997 and the date of discharge 17.9.1997 stating that 62 years old lady was operated on 10.8.1997 in Karimnagar developed fever 3 days later and again developed oliguria vomiting and was put on antibiotics. When the documentary evidence filed by the complainant clearly shows that within three days after the operation 10.8.1997, the complainant developed post operative complications which resulted in swelling open wound and drain for three days. The contention of the appellant/opposite party that there is no nexus between the operation and the formation of puss is unsustainable. Ex.A12 is the letter of Dr.S.Vijaya Rama Rao dated16.9.1994 addressed to Dr.Bikshapathi which states as follows:

This patient was referred to Dr.Rambhoopal with Hepato Renal failure and History of having been operated for Trochantric Fracture. Wound has opened and pus was drained. Stil there is minimal serous discharge. I am referring this case to you for further dressing and follow up. Kindly do strep tomycin powder dressing and approximate the wound.

From the aforementioned letter it is clear that the patient was suffering from postoperative complication of pus which was drained and she was septeceamic and suffering from hepato renal failure. The contention of the appellant/opposite party that there was no fever after the operation is also unsustainable in the light of Ex.A11 in which Dr.S.Vijaya Rama Rao opined that the patient developed fever three days after the operation together with jaundice. These documents establish that the complainant had suffered from postoperative complication and 300 ml pus was drained and we rely on the judgment of the Apex Court in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE reported in (2004) 8 SUPREME COURT CASES 56.

A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners 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 negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

In the instant case also it is upto the appellant doctor to explain how the patient had developed septecimia and pus within three days of the operation when he himself has conducted the operation on 11.8.1997. In the light of all the documentary evidence we are of the considered opinion that there is negligence on behalf of the opposite party with respect to postoperative complications. However, we observe that the amount of Rs.1,50,000/- awarded by the District Forum is excessive and we reduce the same to Rs.1,00,000/- while we confirm the rest of the order of the District Forum.

In the result the appeal is allowed in part reducing the compensation of Rs.1,50,000/- to Rs.1,00,000/- while confirming the rest of the order of the District Forum. Time for compliance four weeks.