ST. ANTONY HOSPITAL Vs. C.L. D’SILVA

JUDGEMENT

(1.) THIS first appeal has been filed by St. Antony Hospital, Appellant herein and Opposite Party before the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission, which had partly allowed the complaint of C.L. D 'Silva, Respondent herein and Complainant before the State Commission alleging medical negligence against the Appellant.

(2.) FACTS : In his complaint before the State Commission, Respondent -Complainant had stated that his wife Corrine D 'Silva (hereinafter referred to as the Patient), who was gainfully employed in a foreign company in Chennai, complained of pain in the lower abdomen on the right side. Suspecting it to be a case of Appendicitis, Respondent -Complainant took her to Pavithra Hospital, Erukkanchery, Chennai, wherein an ultrasound scan indicated that she had a small cyst on her right ovary and fibroid uterus was suspected. Respondent -Complainant took a second opinion from St. Thomas Hospital where removal of ovaries was advised, which required surgery and 10 to 15 days ' hospitalization. Since Respondent -Complainant and the Patient were living in Madhavaram, they decided to go to the nearby Appellant in April, 2000 for fixing a date for admission and surgery. Appellant conducted preliminary tests like Chest X -ray, ECG etc., the results of which were normal. The Assistant Administrator of the Appellant advised the Patient to postpone the surgery till 12.05.2000, as a reputed and experienced Doctor from USA, one Dr. Samuel Parra, was visiting their Hospital to demonstrate his skills. Patient, therefore, applied for medical leave for 4 weeks from 12.05.2000 and was examined by Dr. Samuel Parra on that date, who after diagnosis stated that he would remove the cyst by Laparoscopy method and, if required, thereafter a surgery would also be done. Since the Appellant did not have the Laparoscopy instrument required by Dr. Parra, it was arranged from a hospital in Tuticorin and the surgery was fixed for 24.05.2000. Patient got admitted on 23.05.2000 and was thereafter allotted a room which was very unhygienic as sewage water was stagnating nearby. At 8.30 a.m. on 24.05.2000 Patient was taken to the operation theater for surgery and on its completion, she was brought back to the room at 12.45 p.m. Same night, she developed high fever and also later complained of discomfort and severe pain in the abdomen. She was assured by Dr. Parra that this was a routine pain after surgery. However, when her condition worsened, she was again examined on 26.05.2000 by Dr. Parra who asked the Respondent -Complainant to arrange for 2 Pints of blood. Patient 's condition continued to deteriorate and breathing became belabored and, therefore, she was put on oxygen. When Respondent -Complainant returned with the blood required for transfusion, he found that the Patient had been taken to the operation theater for the second surgery. Thereafter at 11.20 p.m. Dr. Parra informed the Respondent -Complainant that by mistake, colon of the Patient was ruptured during the first surgery, as a result of which her body fluids and faecal matters had leaked into her system, but this was cleaned up and the mistake rectified during the second surgery. Respondent -Complainant was also informed that both ovaries had been removed and sent to the laboratory for tissue culture. Patient was breathing with great difficulty and the external incisions following her surgery were also not fully closed, which according to the Doctor was necessary in case another emergency surgery was required. Respondent -Complainant stated that he was fully confused with these sudden developments and on 27.05.2000 when he was permitted to see the Patient, he found her in semi -conscious state. He also reliably understood from discussions among Doctors that his wife 's first surgery was an experimental one and the equipments used were not functioning properly. On 27.05.2000 at 7.00 p.m. Dr. Parra and other Doctors from Appellant informed the Respondent -Complainant that they were not equipped to cope with Patient 's critical condition since there were no intensive care facilities and advised him to transfer her to Sri Ramachandra Medical College Hospital at Porur. When the Patient was shifted late at night to Sri Ramachandra Medical College Hospital, she was taken to ICCU and put on ventilator there and Doctors informed the Respondent -Complainant that his wife 's recovery chances were only 5% as the internal organs were in septic condition due to presence of faecal matter etc. causing severe internal damage. The Doctors at Sri Ramachandra Medical College Hospital also advised that the wounds may have to be reopened and cleaned but this was very risky procedure, for which the Respondent -Complainant was required to sign a consent form. However, despite all efforts Patient passed away on 16.05.2000 at 2.20 a.m. As per the medical record, the cause of death was Septicemia leading to multi organ failure. Being aggrieved by the medical negligence and deficiency on the part of the Appellant and Doctors therein, including Dr. Parra who used the Patient as a guinea pig, in conducting a Laparoscopy with ill equipped equipments, which resulted in the rupturing of the colon of the Patient, Respondent -Complainant issued a legal notice to the Appellant claiming Rs.15 Lakhs as compensation. However, since no reply was received from them, Respondent filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that the Appellant be directed to pay him (i) Rs.15 Lakhs as compensation towards loss, hardships and mental agony suffered by him on account of gross deficiency in service and the medical negligence on the part of Appellant and its Doctors; (ii) Rs.1,81,911/ - being the refund in respect of medical treatment; and (iii) Rs.10,000/ - as litigation costs, as also any other relief as deemed appropriate in the interest of justice.

(3.) THE State Commission after hearing the parties and on the basis of evidence filed before it, particularly the statement of Dr. Parra, who admitted that there were some technical problems and defects with the Laparoscopy equipments which he had faced while conducting the Laparoscopy, concluded that medical negligence and deficiency in service was clearly established. In this connection, the State Commission, inter alia, observed as follows : "So far as the present case is concerned, there is concrete unimpeachable evidence in the shape of the report of Dr. Parra. The equipment was not in good shape; the person who were assisting him were novices and had no previous experience with the use of laproscope; during the surgery, there was some malfunctioning of the equipment; there was a tear in the colon and as to how it happened Dr. Parra could not explain; the opposite party hospital was unhygienic. There is least doubt that the opposite party had been negligent and there was deficiency in service.. " The State Commission while recording that it would be difficult to quantify the amount of compensation in the case of death of one 's spouse, after taking into account all the facts of the case, held that a compensation of Rs.5,00,000/ - would be just and reasonable and accordingly directed the Appellant to pay the Respondent -Complainant the said amount together with Rs.5000/ - as litigation costs within a period of two months.