REVISION PETITION NO. 3812 OF 2011
(Against the Order dated 20/07/2011 in Appeal No. 81/2009 of the State Commission Himachal Pradesh)
1. MADAN LAL & ORS.
S/o Late Sh Shankar Chand, R/o Village Daka PO Palera, Tehsil and
2. Maste Shareshtha Bharati Nonir SOn,
Village Dhaka, PO. palera
3. Kumari Nanshee Wala Minor D/o madan Lal Son of Shankar Chand
Village Dhaka, PO. palera
1. DR. R.K. CHAUDHARY & ANR.
RK Nursing Home, VPO Bitra, Tehsil
2. Dr. Smt. Veena Choudhary
R.K Nursing Home, VPO Birta , Tehsil and
3. THE NEW INDIA ASSURANCE CO. LTD.
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner :Mr. Shaurya Sahay, Advocate
For the Respondent :For the Respondent Nos. 1 & 2 : Mr. K.G. Sharma, Advocate
For the Respondent No. 3 : Mr. Amit Kumar Singh, Advocate
Dated : 01 Apr 2016
O R D E R
DR. S. M. KANTIKAR, MEMBER
- Smt. Usha Kumari (herein referred as “patient”) got initial treatment for pain in abdomen in Mission Hospital, Kangra, thereafter , she consulted Dr.Chaudhary (OP-1) and Dr.Veena Choudhary (OP-2) at R.K.Nursing Home,Kangra. As per advice of OP-1, patient’s Ultrasonography (USG) was done on 17.06.2003 at Makkar Scanning Centre, Kangra. Thereafter, on 7.7.2003 OP1 & 2 conducted the Total abdominal hysterectomy operation (TAH for removal of uterus). The anaesthesia was not given by anaesthetist but it was given by the operating doctor. OP1 & 2 were not competent to give anaesthesia. The patient’s condition started deteriorating. Therefore, the OP referred the patient to CMC Ludhiana on 16th July at 03.00 a.m. The complainant took the patient to Govt. Medical Hospital, Chandigarh, where she expired at about 01:00 pm on 16.07.2003. The doctors at that hospital informed the complainant that due to acute loss of blood in the patient, three units of blood were transfused. Complainant alleged that, the death of his wife was due to negligence of OP-1 and OP-2. The OP hospital had no adequate facilities like technical staff, anaesthetist, blood bank, modern lab, and oxygen facilities. Therefore, complainant filed a complaint before District Forum, Kangra at Dharmshala for claiming compensation for Rs. 10 Lakhs along with 12% interest.
- The District Forum dismissed the complaint. The subsequent appeal filed by the complainant was also dismissed by the State Commission.
- Aggrieved by the order of the State Commission, the complainant preferred this Revision petition.
- We have heard the learned counsel for both the parties. Counsel for complainant argued that the patient was unnecessarily operated at OP hospital, wherein she developed complications; no reasonable steps were taken by the OPs to avoid complications. After repeated insistence of the patients’ relative, the OP advised to shift the patient to higher centre at Ludhiana or Chandigarh. But, the patient was transferred to Govt Medical College, Chandigarh without any supervision or ambulance. There was severe loss of blood in the patient.
- The counsel for OPs denied any negligence caused by the OP-1 and 2. The counsel further submitted that, patient had taken medicines from many places, on the basis of USG of abdomen done at Maple Leaf hospital; it was diagnosed as a case of menorrhagia with fibroid uterus and ovarian cyst. Prior to operation, the USG from Makkar ultrasound centre was advised by OP-1 and on the basis of said report, OPs proceeded for hysterectomy operation. The pre-operative haemoglobin percentage was 9.5 gm %. The TAH was performed on 07.07.2003. The evidence of Dr. Meenakshi Makkar is that she has given the report for USG of the patient with the impression with “it may be clinically co-related”.
- We have perused affidavit evidence of Dr.Meenakshi Makkar, the relevant part is reproduced as below:
2. That in U/S scanning the normal (homogenous) and all normal (heterogeneous) tissue is differentiated and diagnosed as diseased one. Any lesion of the dimensions of two centimetres or less with inadequate heterogenicity is likely to be missed and more so when it is present in posterior wall of the uterus. As rightly said and taught and medical text “Images (i.e. Scan films) are good servants (guide) but bad masters “the repost of it is always to be correlated by the Specialist concerned with his/her clinical findings of the particular patient and so it is mentioned to correlate clinically. Also at times the report of different doctors may differ for the same patient and hence it is utmost essential to correlate the same with the clinical findings of the doctor concerned (Specialist asking for the U/S scanning).
- The counsel for OP further submitted that, the doctors took reasonable steps during complications .The counsel brought our attention to the affidavit of Dr. Atul Sachdev from Government College, JMCH, Chandigarh. It is reproduced as below;
- We are of considered view that, as per USG report issued by Dr. Meenakshi Makkar, the uterus was of normal size - 5 x 3.3 cms. It was specifically mentioned as “to correlate clinically”.Nothing was mentioned in the report about uterine fibroid or endometrial hyperplasia. The OPs performed the TAH unnecessarily, along with removal of one ovary. It may lead to pre-mature menopause and the patient needed hormone replacement therapy (HRT) throughout. In this context, we have relied upon the medical books like Shaw’s Gynaecology, Evan’s Gynaec Pathology.
- We have requisitioned the files from District Forum and perused the original records. As per the medical record of OP hospital, the patient was admitted with the history of pain in abdomen. The OP made diagnosis of fibroid uterus. The prescription slip of R.K. Nursing Home clearly shows that the USG abdomen was done at Maple Leaf Hospital. It is mentioned as menorrhagia fibroid uterus. There is nothing on record to show as to how the OP arrived at a decision of fibroid uterus and decided to conduct TAH.
- At this juncture, it is relevant to note the affidavit of Dr. Paul P.K.Rajendra, the Medical Superintendent of Maple Leaf Hospital, Kangra. He submitted that “Mrs. Usha Kumari W/o Mr. Madan Lal has not visited this hospital or examined / retained in the month of May, 2003 neither any ultrasound has been done w.e.f. June, 2003 to 30 June, 2003”. Further, the evidence of Dr. Meenakshi Makkar also shows that there was no fibroid of the uterus. Hence, there was no reason to perform hysterectomy. After hysterectomy, the medical record from 07.07.2003 to 14.07.2003 is devoid of clinical notes pertaining to condition of patient. At many places, we have noted word “Ct all” only. On 10.07.2003, patient had pain and was vomiting. Similarly, on 14.07.2003, patient had c/o vomiting, but nothing was mentioned about the condition of patient.
- Another important document which shows the cause of death of the patient is that on 16.06.2004, the Professor And Head of Dept. of Forensic Medicine, Rajendra Prasad Govt. Medical College, Kangra , gave opinion in this regard. It is reproduced as below:
1. Fibroid uterus with ovarian cyst which had been a sole indication for surgery is not supported by clinical findings as well as investigation. Available USG report does not confirm the above diagnosis.
2. Pre-operative & post-operative care given to the patient was a routine care which was modified according to the complaints of the patient.
3. On 15.07.2003 i.e. the 8th post-operative day the condition of the patient deteriorated for which no cause or diagnosis has been mentioned in the record and no relevant investigations to determine the cause of deterioration are mentioned in the record.
4. According to the death report issued by the Govt. Medical College, Chandigarh the cause of death was post-operative Pancreatitis with sepsis with Cardiorespiratory Arrest. No relevant record supporting the cause of death is available. Hence, opinion regarding cause of death and its co-relation with the deteriorating symptomatology of the victim on 8thpost-operative day may be sought from the doctor who examined and treated the patient after admission to Govt. Medical College Chandigarh.
- Dr. Atul Sachdeva,Prof and Head of Medicine at GMC, Chandigarh gave the report regarding cause of death of patient. According to him, the patient was admitted in serious condition as an emergency. The serum amylase and lipase were elevated and on the basis of the report, it was diagnosed as pancreatitis, due to post-operative with sepsis. She had a very short stay in the hospital and she died of cardio respiratory arrest.
“a) The report of the Ultrasound provided to us from the police department does not show any abnormality such as fibroids in the uterus or ovarian cyst. Also we do not know the clinical symptoms of this patient, we cannot say for sure whether the decision of the operating doctor to operate was right or wrong. There is no mention of the symptoms of menorrhagia. Also, we as internal medicine specialists cannot say about the indications of surgery in menorrhagia.
b) We also cannot say that any negligence has occurred especially as the cause of death has not been established. A post-mortem should have been done for a definite diagnosis of death.”
- Therefore, considering the entirety of the facts and circumstances, it is pertinent to note that OP1 is a surgeon whereas, OP2 is a gynaecologist. In a haste and in the pretext of menorrhagia and fibroid , OPs decided to perform TAH. In fact, the patient was suffering from abdominal pain therefore, approached OP. Patient was not properly examined by the OP, but directly jumped into the diagnosis of fibroid uterus. No doubt, post operative Pancreatitis is a known entity, but in the instant case, OP did not advise any relevant investigations to ascertain the cause of abdominal pain in the patient. In our view, OP missed to make diagnosis of pancreatitis at initial stage only. The unwanted TAH surgery further aggravated pancreatitis, which was fatal in the instant case. Therefore, it was the failure and the negligence of OP1.
- Regarding Oopherectomy (removal of ovary), it can cause premature ovarian failure. The medical literature reveals as following:
Will the ovaries be removed or left in place?The ovaries generally are not removed when a hysterectomy is performed for uterine fibroids. Removing the uterus alone will cure the bleeding and the size-related symptoms caused by the fibroids. Removing the ovaries is thus not required in treating fibroids as it is for other diseases like endometriosis or gynecologic cancers.
Many physicians were taught that at a set age (which varies between 35 and 50) women should be told that removal of the ovaries is recommended as part of the surgery, in the mode of “while we are there, we may as well.” The general teaching had been that ovaries don’t have any function after menopause and the risk of ovarian cancer increases with increasing age, so removing the ovaries near the time of menopause was a no-lose proposition. This was especially true if hormone replacement therapy could be used to help younger women transition to the time when they would naturally go through menopause.
In the instant case, the patient was 37 years of age. We do not find any justification to the act of OP, who performed TAH with removal of one ovary.
- It is well settled that, 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. As in Laxman Balkrishna Joshi (Dr.) Vs. Dr. Triambak Bapu Godbole, AIR 1969 SC 128 ,the Hon’ble Supreme Court held that;
It further observerd that,
- A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties will -support an action for negligence by the patient."
In the instant case the OPs failed on all counts.
- The complainants have prayed for the total compensation of Rs. 10 Lac along with the interest @ 12% from the time of death of patient. We have difficult task to determine the compensation without any cogent material on record to prove the monthly income of the deceased. At the time of death, the deceased was a young woman of 37 years, having two minor children. The loss cannot be measured in monetary terms alone; it is a fact that the minors are deprived of love, husband lost a companion. Therefore, the complainants deserve adequate compensation in the instant case.
- Therefore, we rely upon decisions of the Hon’ble Supreme Court In Reshma Kumar and Ors. Vs. Madan Mohan and Anr. (2009) 13 SCC 422, the Honble Supreme Court, reiterated that the compensation awarded under the Act should be just. The Court also identified the factors which should be kept in mind while determining the amount of compensation. It was also followed in case of Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 and in the case of V.Krishna Kumar Vs. State of Tamil Nadu & Ors. JT 2015 (6) SC 503.
- Therefore, considering the facts and circumstances of instant case and on the basis of forgoing discussion, we allow this revision petition and direct the OPs to pay total lump sum compensation of Rs.10,00,000/-(Ten lacs) to the complainants within 90 days from the date of receipt of this order, otherwise it will carry interest @ 9% p.a., till it’s realisation. In case the OP-1 and OP-2 doctors are indemnified by the New India Assurance Co.(OP-3), the OP-3 shall pay the compensation.