CHANDA RANI AKHOURI Vs. M.A METHUSETHUPATHI

JUDGEMENT

(1.) COMPLAINANT No. 1 widow and complainant Nos. 2 and 3, minor children of Naveen Kant, jointly filed this complaint inter alia alleging that for the first time in April, 1990 Naveen Kant developed hypertension and was under the treatment of Dr. P.D. Gulati, Nephrologist. On 15.5.1995, Dr. Gulati advised him for renal transplantation. Since 1.6.1995, Naveen Kant underwent regular maintenance dialysis at Tirath Ram Shah Hospital, Delhi under the supervision of Dr. Gulati. In June/ July 1995, from their friends and acquaintances Naveen Kant and complainant No. 1 learnt of Dr. Muthusethupathi -opposite party No. 1, a Nephrologist of repute at Madras. On 31.7.1995, Naveen Kant; complainant No. 1; A.V. Krishna, brother of complainant No. 1 and O.J. Somasundaram met opposite party No. 1. He was shown the entire medical record. After examining Naveen Kant, the opposite party No. 1 agreed to perform renal transplantation for him. On 25.8.1995, opposite party No. 1 examined the suitable donor to assess his kidney's compatibility with Naveen Kant's system. On 8.9.1995, Naveen Kant and the donor jointly wrote the Authorising Committee constituted by the Government of Tamil Nadu vide G.O. Ms. No. 287/ Health dated 15.5.1995 for approval. In their meeting held on 15.9.1995 the Authorisation Committee approved the proposed transplantation. On 17.9.1995, opposite party No. 1 advised Naveen Kant. to continue to have dialysis twice a week and wait his turn for transplant operation. After waiting for four weeks and finding that there was no immediate prospect of his turn reaching, Naveen Kant returned to Delhi. He continued to have dialysis twice a week as advised by opposite party No. 1 at Tirath Ram Shah Hospital. On 31.10.1995, Naveen Kant and complainant No. 1 returned to Madras and consulted the opposite party No. 1 who indicated that the operation might be done on 12.11.1995 at opposite party No. 6 -Aswini Soundra Nursing Home. On 10.11.1995 amount of Rs. 1,10,000 towards medical fee and expenses was paid partly in cash and partly through an account payee cheque to opposite party No. 6 -nursing home. On 12.11.1995, kidney transplant was performed by a team of about twelve doctors headed by Dr. P.S. Venkateswaran -opposite party No. 5, a Consultant attached to opposite party No. 6. Opposite party No. 1 joined the team in operation. After operation, opposite party Nos. 1 and 5 informed the complainant No. 1 of the transplantation being successful. From the operation theatre both the donor and Naveen Kant were shifted to ICU for post -operative care. Complainant No. 1 was not allowed to go near them. On 15.11.1995, complainant No. 1 was informed by the nursing staff on duty that her husband had developed infection and malaria for which certain medicines were given. Complainant No. 1 and other family members were allowed to see Naveen Kant only with facemask and that too for few minutes in a day in the ICU. On 20.11.1995, donor was discharged from opposite party No. 6 -nursing home. On 24.11.1995, Naveen Kant too was discharged with direction to attend as an out patient for dressing of the wound at the place of incision. It was alleged that while still in ICU, Naveen Kant had complained of pain in his left forearm where intravenous drugs were injected to opposite party Nos. 1 and 5 who assured that the pain would disappear in due course. On the same day, in the evening, Naveen Kant and complainant No. 1 attended the clinic of opposite party No. 1 for review when Naveen Kant reiterated his grievance of pain in the left forearm. From 24.11.1995 onwards, Naveen Kant accompanied by complainant No. 1 and/ or one of his family members attended the clinic of opposite party No. 1 or opposite party No. 6 -nursing home almost daily. On 30.11.1995, opposite party No. 1 noticed the onset of cellulitis in Naveen Kant's left forearm and he referred him to opposite party No. 5. After his first abscess burst on 2.12.1995, there was recurrence of the same abscess at other point(s). Still the doctors did not take it seriously and conducted investigations into the cause of pain. On 16.12.1995, Naveen Kant developed severe headache coupled with loss of proper vision in the right eye. On 20.12.1995 he further had a bout of vomiting. Complainant No. 1 pointed out these problems to Dr. K. Yathindra Kumar, dialysis incharge of opposite party No. 4 -hospital, who used to administer necessary I.V. injections and do the dressings. On 21.12.1995, on the advice of opposite party No. 1, Naveen Kant was admitted to opposite party No. 4 -hospital. At about 4.00 p.m. Naveen Kant became unconscious. He was seen by opposite party No. 1, Dr. Kumaresan, a Neurologist and opposite party No. 3 -Dr. K.K. Bhat. He was administered anti convulsion injection. On 22.12.1995, Naveen Kant was attended by opposite party Nos. 1, 3 and 5 and Dr. Kumaresan. Headache, fever and pus in his left forearm still persisted. Opposite party No. 5 made a long incision in the left forearm to drain -off the pus. It was stated that thereafter till 30.12.1995. opposite party No. 1 became unavailable. He had instructed Dr. S. Shivakumar -opposite party No. 2 to attend to Naveen Kant without giving him clear instructions. On 23.12.1995, Naveen Kant developed drowsiness and lost control over the bladder and bowels and a CT Scan of brain was done but it revealed no abnormality. Pus culture showed no growth. On the night of 25.12.1995, Dr. Minn'i Dutta, MD Paediatrics and DNB, sister of complainant No. 1, came to Madras. From 26.12.1995 onwards she consistently remained in touch with the opposite parties. On 26.12.1995 a bedscan Ultrasound was done which disclosed that Naveen Kant had small abscess in pancreas and liver. On 27.12.1995, X -ray was taken which showed some abnormal developments in the lung. On 29.12.1995 in addition to Fortum I.V. and Amikacin I.V. already being given for the existing infection, the doctors prescribed anti -tubercular treatment (ATT) as well as injection Vancomycin for septicaemia. On 3.1.1996, Naveen Kant's sodium level dipped sharply and he he -came comatose. ATT was suspended. On 4.1.1996, a bedscan ultrasound revealed that the infection had spread to the pancreas. Opposite party Nos. 1 and 3 resorted to administering different antibiotics to contain the spread of infection. On 7.1.1996, opposite party No. 1 was stated to have admitted to Mrs. Vimla Akhouri, sister -in -law of complainant No. 1, that Naveen Kant was in advanced stage of septicaemia. Despite this, the doctors maintained a routine treatment and made no concerted efforts to contain the septicaemia either in terms of required potency of antibiotics administered or the quality of these antibiotics or otherwise. After a gap of 9 days on 12.1.1996 ATT was resumed. As Naveen Kant was having low grade fever ATT was given for 12 days. On 24.1.1996, a CT scan of brain to rule out meningitis was done which showed that there was no meningial feature present. On 27.1.1996, lumbar puncture was done. On 28.1.1996, Naveen Kant went into delirium during the night. On 30.1.1996 he developed breathing problem. He was moved to ICU on instructions of Dr. K.K. Bhat -opposite party No. 3. In the morning of 31.1.1996, opposite party No. 1 visited Naveen Kant who was in unconscious state. He advised shifting from opposite party No. 4 to opposite party No. 7 -St. Isabel's Hospital. At opposite party No. 7 -hospital, the opposite party No. 1 visited him. He called Dr. Kumaresan and Dr. Venkatesan. Naveen Kant was fed through Ryle's tube and suction catheter was used to clear his throat. Certain blood tests were conducted. His condition continued to deteriorate and ultimately he died on 3.2.1996. Attributing negligence on the part of said treating doctors and the hospitals, following amounts have been claimed by the complainants: <FRM>JUDGEMENT_48_NCDRC_2009.htm</FRM>

(2.) OPPOSITE party No. 1 contested the complaint by filing reply on affidavit. It was alleged that the members of the team who performed the renal transplant operation, are the experts in their field and had conducted more than 900 renal transplants with very good results. This is one of the rare cases where the patient died despite the best efforts of the doctors. Answering opposite party No. 1 is M.D. (General Medicine) from Stanley Medical College. After working as an Assistant Professor of Medicine in various medical colleges in Tamil Nadu, he joined the Post Graduate Institute (PGI) for D.M. Nephrology Course in 1975. He got his D.M. degree in 19/7. He trained more than 48 candidates for the degree of DM Nephrology and DNB Nephrology and has won many awards. Opposite party No. 2 did his MD in General Medicine in 1977 and he joined the Tamil Nadu Government Medical Service. He became Assistant Professor of Medicine in 1978 and remained Assistant Professor of Nephrology in the Department of Nephrology during 1987 to 1997. Now he is the Professor of Medicine in Stanley Government Hospital, Chennai and has published many papers in Nephrology. Opposite party No. 5 passed M.S. (General Surgery) in 1978 and obtained MIC Vascular surgery qualification. He worked as Assistant Surgeon in Tamil Nadu Government service from 1977 to 1983. He worked as an Assistant Professor of Surgery from 1983 in Royapettah Government Hospital, Chennai. He was promoted as Professor of Surgery in Tamil Nadu Government Service in the year 1977. At present he is working as Honorary Professor of Surgery and as a Senior Civil Surgeon at Government General Hospital and Madras Medical College, Chennai. He has extensive general surgical and vascular surgical experience of nearly 30 years and he is one of the seniormost surgeons in Tamil Nadu Government Service. Since 1985 he has performed over 500 kidney transplant surgeries. He trained 60 candidates for MS (General Surgery) and presented several academic papers and attended several conferences. Kidney transplantation team at 6th opposite party -nursing home has been functioning since 1985 and has performed over 500 kidney transplantations till date. The facilities at the post transplant intensive care unit of opposite party No. 6 -nursing home are of a high standard and there is no possibility of acquiring infection from ICU. Patients are kept under barrier nursing to ensure that they do not acquire any infection from the hospital environment. It was stated that Naveen Kant was in opposite party No. 6 -nursing home till 24.11.1995. Record of the nursing home for the period from 10.11.1995 to 24.11.1995 would show that surgery was successfully performed on 12.11.1995. On 13.11.1995, patient developed low -grade fever for a few hours in the morning. There was no other evidence of bacterial infection. Naveen Kant was given injection Reflin. The temperature normalized in the afternoon. On 14.11.1995, Naveen Kant had fever and chills. Blood culture was sent for lab test and injection Fortum was started. Blood test for malaria parasite was positive. Nivaquine was started. Blood culture for bacteria was negative. Naveen Kant attained normal temperature from 15.11.1995 and remained so till discharge. On 17.11.1995, Urine Catheter tip grew Klebsiella though urine culture was sterile. A course of cyprofloxin was started on 20.11.1995 and was continued for five days. Had there been any complaint by Naveen Kant of pain in forearm or of any other infection it would have been looked into very carefully. There was no evidence of any infection. Naveen Kant was doing well at the time of discharge. It was stated that rise in total leucocyte count is common in immediate post transplant period and does not necessarily imply any infection. Immune suppressive drugs which were given to Naveen Kant, were essential to prevent rejection of the transplanted organ. When immune system is suppressed, bacteria from individuals' own body can cause infection. After discharge, as per practice, a patient is called in opposite party -clinic three times a week to begin with and than at frequent intervals depending on the condition of patient. From pages 169 to 173 of the Annexures, it is clear that Naveen Kant's progress was quite satisfactory until 30.11.1995 when it was noticed that he had developed fever on that day and had cellulitis in left forearm. Reflin which is one of the best antibiotics for cellulitis was started. On 4.12.1995 it was found that temperature was settling but on 5.12.1995 Naveen Kant was febrile. Therefore, injection Amikacin was added. On 6.12.1995, abscess was incised and drained by opposite party No. 5. When Naveen Kant visited the opposite party No. 1 on 12.12.1995 he was having temperature. Medicine Quintor was added. The fact that abscess was incised and drained on 6.12.1995 has not been disclosed deliberately in the narrative chart at page 63 annexed with the complaint. On 18.12.1995 temperature was found to persist and there was induration in the left forearm. Test for malaria was positive. Nivaquine was, therefore, given. On 16.12.1995, total leucocyte count was high with 91% polymorphs. Naveen Kant was started with Vancomycin for probable infection. He was advised to get admitted in the hospital. Naveen Kant himself chose opposite party No. 4 -hospital. He was admitted in that hospital on 21.12.1995. On that day answering opposite party and Dr. Kumaresan visited him when blood, urine and pus culture were sent for test and he was started on injection Fortum and Amikacin. On the same day at about 4.00 p.m. Naveen Kant was found unconscious. Dr. Kumaresan saw him and prescribed Epsolin. He regained consciousness when Dr. Kumaresan was at(sic)nding to him. Fever continued. Opposite party No. 1 was out of town from 23.12.1995 to 30.12.1995. Patient was looked after by opposite party No. 2 -Dr. S. Shivakumar, Assistant Professor of Nephrology who has been the colleague of opposite party No. 1 and assisted him over 10 years and was fully conversant with the problems of kidney transplantation. Naveen Kant was looked after by Dr. Kumaresan, opposite party No. 2 and Dr. Bhatt. The cultures were reported negative. On 23.12.1995, opposite party No. 5 made an incision and evacuated the pus from the left forearm. He was given a course of Mefloguin for possible malaria. On 26.12.95 opposite party No. 5 noted that the wound was healthy and there was no purulent discharge of pus. Naveen Kant was conscious though the complainants mention about the alleged headache and drowsiness. Despite higher antibiotic therapy Naveen Kant continued to have fever. Dr. Natarajan, Professor of Chest Diseases and Tuberculosis at Government General Hospital was called in. He saw Naveen Kant on 28.12.1995 and considered the possibility of Tuberculosis. He suggested that injection vancomycin be started and if there was no response it be substituted with anti -tuberculosis treatment. His advice was followed. On 31.12.1995 Naveen Kant continued to have fever and Cifron, Metrogyl, Vankomycin and anti -TB drugs were administered. On 2.1.1996, indurated area at the site of incision was noted in the left. forearm. Injection Aztreonam was started. On 2.1.1996 it was opened and pus was let out. Repeated blood and urine cultures were negative. On 4.1.1996, temperature was settling and patient was conscious with clear lungs. Ultrasound abdomen showed four hypoechoic areas in the pancreas. Same treatment was continued. Naveen Kant was having fever continuously and was under constant observation and treatment. On 16.1.1996, CT abdomen showed hypodense areas in pancreas. He was reviewed by Dr. Kumaresan on 24.1.1996 and CT scan of brain was taken. He developed headache on 24.1.1996 and had neck stiffness. Lumbar puncture was done by Dr. Kumaresan on 27.1.1996. This showed cleared CS fluid. Same treatment was continued. On 29.1.1996, patient was reviewed by Dr. Kumaresan and he opined that due to rise of CSF protein, anti -TB treatment should be continued. On 30.1.1996, patient became drowsy and had difficulty in breathing. He was shifted to opposite party No. 7 -St. Isabel Hospital. On 31.1.1996, he was seen by Dr. Kumaresan and Dr. A. v. Srinivasan, M.D., D.M. Neurology. He was given necessary supportive treatment but he died on 3.2.1996. It was further stated that the records would show that Naveen Kant had a successful kidney transplant and was managed with utmost care at Aswini Soundra Hospital -opposite party No. 6. He did not have forearm pain or any other evidence of infection at the time of discharge from there. Cellulitis left forearm and fever had developed on the 18th postoperative day, namely 6 days after discharge: After discharge he was promptly started on aggressive antibiotic therapy. Since fever persisted he was admitted to opposite party No. 4 -K.S. Hospital where he had an episode of transient seizure. An eminent neurologist was consulted and antibiotics were continued as indicated above. Despite exhaustive and aggressive anti -biotic therapy the fever of Naveen Kant persisted and there was mild persistent induration in the left forearm. Repeated blood, urine and pus cultures failed to reveal any organism even though Naveen Kant continued to have fever. Opinion of an experienced chest physician was sought and anti -TB treatment was started and continued as per his advice. In spite of all prompt, aggressive and modem care the exact cause of Naveen Kant's fever could not be identified. Culture for bacteria and fungi were repeatedly negative. Suppressive therapy also predisposes to various opportunistic infections, the exact nature of which is often difficult to establish. It was denied that there was any negligence/deficiency in post -operative treatment of Naveen Kant as alleged. It was further stated that to provide post -operative treatment after kidney transplantation surgery the hospitals need not be registered under the Transplantation of Human Organs Act, 1994 and Rules made thereunder. Opposite party Nos. 4 and 7 were not statutorily debarred from commencing any activity relating to followup medical care to the persons who have undergose transplantation.

(3.) OPPOSITE party No. 6 filed reply on the affidavit of its proprietor -Dr. Sadayavel, Kailasam. It was alleged that opposite party No. 6 is a reputed nursing home and has infrastructural facilities to undertake major surgeries. It is registered under the Transplantation of Human Organs Act, 1994. Several kidney transplant operations have been successfully done in opposite party No. 6 -nursing home. Naveen Kant was a patient of opposite party No. 1. He underwent kidney transplant operation in opposite party No. 6 -nursing home and surgery was carried out by opposite party Nos. 5 and 1 with utmost care and expertise and renal transplantation was successful on 12.11.1995. ICU was kept sterile and clean to avoid any kind of infection. After Naveen Kant developed fever on 14.11.1995 he was given Fortum injection and tablet Novaquine. There was no complaint of forearm pain. As an abundant caution routine antibiotics were administered to him to prevent any infection. Naveen Kant was discharged in good condition. On 24.11.1998 there was no fever or forearm pain or any tenderness. Infection would have contacted while Naveen Kant was at his house after discharge from opposite party No. 6 -nursing home. Allegation of deficiency in service on the part of opposite party No. 6 -nursing home was denied.