B.G. Sreedevi and Others Vs. Krishna Institute of Medical Sciences Ltd. and Others - Court Judgment

(T. Ashok Kumar, Member)

This is a complaint filed U/s.17 of Consumer Protection Act, 1986 by the complainants 1 to 3 against opposite parties 1 to 4 alleging medical negligence claiming compensation of Rs.90 lakhs with interest at the rate of 18% p.a. and costs.

The brief facts of the complaint are as under:

One Dr.B.G.Sridhar, who is the husband of the first complainant and father of 2^nd and 3^rd complainants was a qualified dental surgeon working in PHC Kodukur in Kurnool District and he is hereinafter referred to as the deceased. On 30-11-2009 while the deceased was travelling in his Santro car bearing No.AP 21Q 3600 from Kurnool to Hyderabad near Kondapur Police Station, Alampur Mandal of Mahaboobnagar District on NH 7 highway, he met with an accident and received injuries. Immediately he was shifted to Government hospital, Kurnool where he was treated as out patient. Since the injuries received by him were serious in nature, he was shifted to Gowrigopal Hospitals Pvt. Ltd., Kurnool. Since the patient was complaining head ache and vomiting, CT scan of the brain was taken on 05-12-2009 in Shantiniketan Diagnostic Pvt. Ltd., Kurnool and it was found that he had hemorrhagic contusion in the left posterior temporal lobe with minimal edema. The deceased was treated for such hemorrhage in the brain and also fracture of right patella. A knee surgery was conducted on 2^nd September, 2009 to him and since he was complaining severe head ache and vomiting, second CT brain scan was taken at the very same diagnostic centre on 11-12-2009 and found hyper dense collection in the right quadrigeminal cisten and anterior interhemispheric fissure suggestive of subarachnoid hemorrhage apart from hemorrhagic contusion in the left posterior temporal lobe. In such circumstances, the deceased was taken to opposite party No.1 (KIMS) at Hyderabad for better medical care and treatment on 12-12-2009. He had undergone treatment with Opposite parties 2 to 4 consultant Neurologists. The deceased was discharged from the said hospital on 14-12-2009 and subsequently he was taken to his house at Kurnool. In the night of 28-1-2010 the deceased fell down and had vomiting, shivering and severe headache then he was shifted to Government Hospital, Kurnool as per the advice of Dr.Seetharam and in the morning of 29-1-2010 the deceased went into coma and then the doctors expressed that he needs life support like ventilator and angiogram of brain and in such circumstances, the deceased was shifted on ventilator in the ambulance to opposite party No.1 hospital on 29-1-2010 at 10.00 a.m. CT cerebral angiogram was conducted on the same day at 2.00 p.m. and it indicated that bleeding was progressing in the brain and later on 31-1-2010 at 7.30 p.m. the deceased was declared dead at the said hospital. The deceased was drawing a monthly salary of Rs.30,000/- and on account of gross professional medical negligence on the part of the opposite parties, the deceased died and the complainants lost their bread winner and also his love and affection etc., Had the opposite parties taken appropriate neurological investigations when he was admitted in the opposite party No.1 hospital on 12-12-2009, he would not have died but opposite parties did not render any expert medical service and the said acts of the opposite parties amount to negligence and deficiency in service, hence the complaint.

The opposite parties resisted the complaint by filing a detailed counter contending that they had no knowledge of the alleged accident, treatment at Government General Hospital, Gowrigopal Hospitals, Kurnool on 30-11-2009 and also subsequent treatment at Kurnool on 28-1-2010. It is true that the deceased patient, B.G.Sridhar was admitted in the first opposite party hospital on 12-12-2009 with a history of a road accident dated 30-11-2009 with complaint of severe headache from 3 days associated with nausea and vomiting. There was no loss of consciousness, ENT bleed or seizures. On examination his vital parameters, cardiovascular respiratory and abdominal examinations, neurological examinations were found normal. His right lower limb was immobilized at Kurnool on account of fracture of right patella. His first CT scan brain done at Kurnool disclosed left posterior temporal lobe contusion and second one showed small bleed in the small right quadrigeminal cistern and anterior interhemispheric bleed. As the size of the bleed was small and neurologically he was found to be normal except for the head ache, he was managed medically with anti edema measures and analgesics and his head ache was reduced in the hospital by 14-12-2009. After discussing with the deceased and his family members, he was discharged with an advice to visit Opposite party 1 hospital for follow up after two weeks in Neurology outpatient wing and the contra allegations are denied. Even though the deceased was directed and advised to visit opposite party No.1 hospital after two weeks, he did not turn up for the follow up treatment but contacted opposite party no.4 on phone and informed him that he was doing well and was attending to his routine work at PHC Kodumur and also wished Happy new year on 01-1-2010.

Nearly after 45 days of such a discharge on 29-1-2010 around 1.05 p.m. the deceased was brought to the hospital of opposite party No.1 with history of several headache and vomiting since 11.00 p.m. on 28-1-2010 and that he also had recurrent seizures for six times and became unconscious since then. The deceased was managed initially at Kurnool and shifted to KIMS for further management. On examination, his pulse was 70/min, BP 130/80 and breathing was irregular. Neurologically he was comatose with dilated unreactive pupils and no limb movement to pain. He was immediately subjected to CT scan brain including angiogram with all life support systems and the CT scan revealed a large right frontal hematoma with massive mass effect and transtentorial herniation of brain. Emergency neurological consultation was made and after obtaining consent from the first complainant, wife of the deceased, he was taken for immediate right pericoronal decompressive carniatomy on the same day. The operative findings were THROMBOSED SUPERIOR SAGITAL SINUS AND VEINS, TENSE AND PALE BRAIN AND CSF UNDER PRESSURE ON VENTICULAR TAPPING. On 30-1-2010 at 7.00 p.m. the deceased had cardiac arrest but revived again he had cardiac arrest on 31-1-2010 and inspite of best efforts made by the opposite parties, he could not be revived and at 7.30 p.m he died. After the death of the deceased, the first complainant approached opposite partyno.4 to give a certificate on the ground that her husband died due to the injury caused in the motor vehicle accident but opposite party No.4 did not oblige the said request and therefore the present complaint was filed. It is also contended by the opposite parties that the complaint is barred by limitation and it is also bad for non joinder of other hospitals where the deceased had taken treatment and also the Oriental Insurance company which issued policy in favour of opposite party No.1 covering risk. The complainants did not state whether any Motor Vehicle Original Petition was filed in any Motor Accident Claims Tribunal for compensation on account of death of the deceased. Absolutely there is no negligence or deficiency in service on their part in treating the deceased and thus prayed for dismissal of the complaint. The opposite parties in additional written version mainly contended that it is the gold standard confirmation of thrombosed superior sagital sinus and vein which is the cause of death so the role of angiogram/surgery has no relevance.

The complainants filed rejoinder to the counter of the opposite parties refuting the version of opposite parties and mainly contended had the vital tests like CT scan, MRI and CT angio of brain of the deceased been done on the date of admission i.e. 12-12-2009 or atleast during the period of his stay in the hospital between 12-12-2009 to 14-12-2009 as inpatient, obviously intracranial bleeding would have been found and the patient would have been saved but it was not done and the patient was treated for fever and shivering and failed to find out the cause for intracranial pressure.

The first complainant filed her affidavit reiterating the case set out in the complaint and disputing the allegations made in the written version. Exs.A1 to A10 were marked on her behalf. Affidavits were filed by the Medical Superintendent of opposite party 1 and opposite party No.4 deposing the various defenses set out in the counter and no documents were marked on their behalf.

Head counsel on both sides with reference to their respective contentions in detail and further the opposite parties submitted written arguments.

Now the points for consideration are:

i) Whether the complaint is within limitation?

ii) Whether complaint is bad for non joinder of necessary parties?

iii) Whether the opposite parties are negligent in treating the deceased and rendered any deficiency in service as alleged?

iv) Whether the complainants are entitled for any compensation/damages from the opposite parties if so, what would be the reasonable quantum?

Point No.1: The opposite parties contended that the complaint is filed after two years 3 months subsequent to the death of the deceased without giving any prior notice and therefore it is barred by limitation whereas the complainant pleaded that the complaint is within limitation. As seen from the record the deceased died on 31-1-2010 in opposite party No.1 hospital while undergoing treatment which gave alleged cause of action to the complainants and the complaint was filed on 30-1-2012 and thus we are satisfied that the complaint is filed within limitation as per Section 24-A of Consumer Protection Act, 1986.

Point No.2: The opposite parties pleaded that the complaint is bad for non joinder of the hospitals i.e. Government General Hospital, Kurnool and Gowrigopal Hospital Kurnool where the deceased had taken initial treatment. The complainants did not allege any deficiency in service or negligence on the part of the said hospitals or Shantinikethan Diagnostic centre and therefore the objections of the opposite parties in the said context holds no water. The opposite parties also contended that opposite party No.1 took indemnity policy of insurance with Oriental Insurance Company Ltd., Hyderabad and therefore the said insurance company is a necessary party to the proceedings. They did not furnish policy details such as number , period of coverage and also copy of the policy to the complainants to implead the insurance company as a party to the complaint and in such circumstances the said objections is unsustainable.

Point No.3: There is no dispute that the first complainant is the wife and second and third complainants are the minor children of the deceased, Dr.B.G.Sridhar and that he was working as Dental Surgeon in PHC, Kodumur during the relevant time and that he died on 31-1-2010 in Opposite party No.1 hospital and that opposite parties 2 to 4 treated him in the said hospital. The contention of the complainants is that on 30-11-2009 while the deceased was going to Hyderabad from Kurnool, met with a motor vehicle accident and received injuries and he was given preliminary treatment at Government General Hospital, Kurnool and then taken to Gowrigopal hospital Kurnool on the same day and thereafter CT scan of brain was taken on 05-12-2009 in Shantiniketan Diagnostic Pvt. Ltd., Kurnool and it revealed that he had hemorrhagic contusion in the left posterior temporal lobe with minimal edema and that the deceased was treated for such hemorrhage in the brain and knee surgery was conducted on 2^nd September, 2009. Since the deceased was complaining severe head ache and vomiting, second CT brain scan was taken at the very same diagnostic centre on 11-12-2009 and found hyperdense collection in the right quadrigeminal cisten and anterior interhemispheric fissure suggestive of subarachnoid hemorrhage apart from hemorrhagic contusion in the left posterior temporal lobe and therefore he was shifted from Gowrigopal hospitals to opposite party No.1 hospital on 12-12-2009 for further treatment.

It is the case of the complainants that the first scan done on 05-12-2009 showed hemorrhagic contusion in the left posterior temporal lobe but the brain scan repeated on 11-12-2009 showed progress i.e. blood in the Anterior hemispheric Fissure/Sub Arachnoid Hemorrhage (SAH) and the CT angio done on 29-1-2010 in opposite party No.1 hospital showed large hematoma (Right Frontal Lobe + IVH) and mass effect leading to subfalcine and bilateral descending transtentorial herniation of mid brain seen. The bleed was found to dissect into the anterior inter hemispheric fissure. The SAH found on 11-12-2009 and finding on 29-1-2010 are in the same location and it proves that the same location showed blood in the 2^nd scan done on 11-12-2009. The blood in the anterior hemispheric fissure found on 11-12-2009 had obviously progressed to the massive bleeding seen on 29-1-2010 and added to this the two drugs 1. Aceclofenac and 2) Wliwel 25 were prescribed at the time of discharge of the patient on 14-12-2009 can produce bleeding anywhere in the body and there is further increase in the chances of bleeding in the body as side effects and it was so deposed by the first complainant in her affidavit.

The opposite parties contended that due diligence, reasonable care and skill was shown in treating the deceased to the best of their ability and that since CT brain scan was done on 11-12-2009 at Kurnool, a day before the deceased was brought to the opposite party No.1 hospital, again it was not so done and treatment was given basing on such CT scan report and the same was discussed with the patient and his attendants and that a bleed in the brain does not progress for 45 days in any case without having new symptoms or signs, which were not there in the case of the deceased and that the opposite parties allege that the cause of terminal event was cortical venus thrombosis resulting in bleed and not the subarachnoid hemorrhage as alleged and that there is no deficiency in service on their part in treating the deceased. The opposite parties specifically pleaded that with Tab. Aceclofenac and Wliwel 25 there is no case report that interacranial cause of Sub Arachnoid Hemorrhage occurs and at no stretch of imagination had any effect of bleeding and the complainants did not examine any expert to prove contra.

It is the contention of the opposite parties that in medical negligence cases, the expert evidence plays a vital role and the burden of proof is on the complainants and that mere allegation in the complaint and affidavit that there is negligence is not sufficient and there must be cogent evidence. Admittedly the complainants did not examine any medical expert in support of their version. In Martin F DSouza v. Mohd.Ishfaq reported in 2009 (3) SCC 1 the Honble Supreme Court of India laid down the precautions which a doctor/hospital etc. should have taken in the following terms:

i) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly¦

ii) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency should be avoided

iii) A doctor should not merely go by the version of the patient regarding his symptoms but should also make his own analysis including tests and investigations were necessary.

iv) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.

v) An expert should be consulted in case of any doubt¦.

It is true that experts opinion plays a vital role in deciding medical negligence cases but in view of the decision reported in V. Kishan Rao vs Nikhil Super Speciality Hospital reported in (2010) 5 SCC 513 it was held that expert opinion in all cases is not a must. Therefore, merely because the complainants did not examine any expert on their behalf, it is not desirable to discard their case in entirety because if negligence is perse, no expert opinion need to be adduced.

In the instant case, opposite parties have admitted that the patient was brought to their hospital on 12-12-2009 with a case history of alleged RTA on 30-11-2009 and that the deceased sustained injury to his right leg, fracture superior pole of patella (right) slab of right leg done outside and also with history of head ache, severe right side intermittent since three days so also with history of vomiting and nausea + and that patient was treated in Gowrigopal hospitals and that CT scan brain done outside s/o hemorrhagic contusion in left posterior temporal lobe.

Even though the CT scan brain report dated 11-12-2009 which is part of Ex.A7 discloses that there was hyperdense collection in right quadrigeminal cistern and anterior interhemispheric fissure s/o subarachnoid hemorrhage, it was omitted to be mentioned in Ex.A8 for the reasons best known to opposite parties. Admittedly opposite party No.1 hospital is a corporate hospital and when a patient with such history was brought, it was incumbent on their part to conduct necessary tests to rule out any possibility of persistent bleed in the brain, inspite of the fact that such a CT scan was taken outside the hospital and it was not desirable for the opposite parties to treat the patient symptomatically or conservatively basing on the version of the patient regarding his symptoms but they ought to have made their own analysis including tests and investigations which were necessary as is held by the Honble Supreme Court in the above decision reported in Martin F DSouza v. Mohd.Ishfaq.

As already described supra, the second CT scan dated 11-12-2009 showed hyperdense collection in right quadrigeminal cistern and anterior interhemispheric fissure s/o subarachnoid haemorrhage even assuming that it was small in size, it was the duty of the opposite parties to go for brain angio, MRI Brain to rule out the possibility of increased progression of brain bleeding as there was no such quadrigeminal cistern and anterior interhemispheric fissure s/o subarachnoid haemorrhage on right side when first scan dated 05-12-2009 was taken and so appeared in the second scan dated 11-12-2009. The deceased was brought all the way from Kurnool to the hospital of the opposite parties with a hope that better treatment would be given to him as it is a corporate hospital and in such circumstances, it was the duty of the opposite parties to take more care to rule out all the possible complications with the help of sophisticated equipment available with them but they did not choose to do so. It is true that the deceased did not visit the hospital of opposite parties within two weeks and what is its effect will be discussed later. But certainly symptoms of head ache and vomiting indicates progression of brain bleed and the opposite parties failed to take serious note of it. They did not resort to specialized tests such as MRI and CT angio to rule out such a possibility at an early stage and if they would have conducted such tests certainly it would have helped in saving the life of the deceased.

As already described the Subarachnoid haemorrhage found on 11-12-2009 in second CT scan report dated 11-12-2009 and finding on 29-1-2010 in part of Ex.A8 death summary are in the same location, obviously it progressed to the massive bleeding seen on 29-1-2010. Even though no expert is examined the contention of the complainants based on reasoning is sustainable. Therefore, the emphasis of the opposite parties that since CT scan of brain, part of Ex.A7 dated 11-12-2009 of the deceased was done, a day prior to the admission of the deceased into their hospital, considering that it would be a repeat work, no CT scan of the brain was taken could not be appreciated. So also their contention that the cause of death was large frontal hematoma due to cortical venus sinus thrombosis and that it has nothing to do with his initial head injury for want of dependable material literature. Therefore, self serving evidence of the opposite parties is not appreciated in their favour and there is a possibility of the opposite parties designing such a plea so as to suit their circumstances in the death summary also cannot be overruled. Thus we find negligence and deficiency in service on the part of the opposite parties.

Point 4: It is the case of the complainant that the deceased had head ache after discharge i.e. 14-12-2009 till 28-1-2010 and it is not known as to why the deceased did not turn up for follow up treatment or review as advised by opposite parties in part of Ex.A8. It is the contention of the complainants that the deceased contacted opposite party No.4 over mobile for persistent headache etc. and that opposite party No.4 advised him to take pain killers but there is no dependable evidence in the said context such as cell phone call data etc., He being a literate and dental surgeon should have followed the instructions given by the opposite parties and visited the hospital for review within 2 weeks but did not do so. The opposite parties also contended that the deceased attended to his job after discharge from opposite party No.1 hospital and before he was readmitted into opposite party No.1 hospital on 29-1-2010 whereas the complainants contended that the deceased had attended his duties only for two days. Both sides did not choose to file any evidence on this count and their contentions could not be appreciated in the said context. In the above circumstances, we are convinced to hold that there is considerable negligence on the part of the deceased also and hence we do not see any reason to award compensation of Rs.90,00,000/- as claimed by the complainants basing on the salary of the deceased but certainly they are entitled for some compensation on account of negligence and deficiency in service rendered by opposite parties in not taking mandatory tests MRI and CT angio etc. and therefore, we are inclined to award a reasonable compensation of Rs.5,00,000/- for the said deficiency in service rendered by the opposite parties to the deceased        Since the claim was not based on accident but based on negligence of doctors and hospital, the contention of the opposite parties that the complainant did not give the details regarding the pendency or otherwise of the claim before M.V.Act is not sustainable.

In the result this complaint is allowed in part directing opposite parties 1 to 4 to jointly and severally to pay a compensation of Rs.5,00,000/- (Rupees five lakhs only) together with costs of Rs.5,000/- (Rupees five thousand only) within four weeks from the date of receipt of the order. The rest of the claim of the complainants stands dismissed.