MRS. M. SHREESHA, MEMBER
1. Aggrieved by the order dated 09.12.2014 in C.C. No. 98/55 passed by the State Consumer Disputes Redressal Commission, Maharashtra (in short, ‘The State Commission’), Opposite Parties 1 & 3 have preferred Appeal Nos. 507 & 521 of 2015 respectively, under Section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’). By the impugned order, the State Commission has partly allowed the Complaint directing the Appellants, jointly and severally to pay an amount of ₹18,08,000/- to the Complainant with interest @9% p.a., within 60 days from the date of the order till the date of realization, failing which, the rate of interest shall be payable @12% p.a., together with costs of ₹50,000/-.
2. For the sake of convenience, the Complainant is hereinafter referred to as ‘the patient’; OP-1 as ‘the Hospital’, OP-2 as the ‘treating doctor’ and OP-3 as ‘Dr. Agarwala’ (the Opposite Parties, as they are arrayed in the Original Complaint). The brief facts as set out in the Complaint are, that on 15.02.1996, the patient consulted the treating doctor, with a complaint of pain in her knees at his consulting room at Patel Chambers, Mumbai. After examining the patient, the treating doctor advised her to undergo an operation for replacement of the left knee joint as it was causing severe pain with every movement. On 01.03.1996, an X-Ray of the left knee joint was taken and the same was shown to the treating doctor. The patient and her husband were advised to get the operation done in the first Opposite Party Hospital. They were further informed that as the treating doctor had already performed several such joint replacements, there was no need to be worried and no other prognosis was explained to the patient. As the operation theatre of the hospital was available on 29.03.1996, the patient was informed that she needed to be admitted on 27.03.1996 for pre-operative investigations. When the patient and her husband asked the treating doctor, details regarding the fee and the post-operative care, they were informed that the hospital had standard charges and that Median – ‘A’ or special class should be selected.
3. Accordingly, on 27.03.1996, at about 2.00 p.m. a deposit of ₹1,30,000/- was made and the patient was admitted in the hospital. All pre-investigative tests viz., X-Ray and E.C.G. were conducted under the directions given by Dr. Chakravarthy. On 28.03.1996, the physician and Dr. Agarwala visited the patient, examined all the pre-investigative reports and reported her fit for surgery. On 29.03.1996, at about 8.30 a.m., the treating doctor assisted by Dr. Agarwala performed the surgery of total replacement of left knee under General Anesthesia. The left leg was put in a plaster which was removed on 06.04.1996 by Dr. Chakravarthy. During the period from 30.03.1996 to 06.04.1996, it was averred that the patient repeatedly complained of constant pain in the operated area and in the left leg for which Cap. Tramazac, Tab. Voveran, Tab. Famotin, Cap. Becosules, Inj. Voveran, Tab. Raricap, Tab. Durcolax and Inj. Tramazac were given.
4. On 05.04.1996, the patient was made to walk with the help of a walker, despite complaining of pain in the operated area. On 06.04.1996, at the time of removal of the plaster, the patient informed Dr. Chakravarthy and the other doctors that the pain was unbearable, but there was no response. On 08.04.1996, some more tests viz., Urine routine, CBC, Liver Profile and Renal Profile were performed, the results of which were reported to be ‘Normal’. It was averred that on 09.04.1996, there was Serosanguineous discharge from the operation wound. It was only on 10.04.1996 that the wound swab was sent for culture and at about 10.00 a.m. dressing was done and the wound was opened by one centimeter to facilitate drainage. It was pleaded that the oozing did not stop and Dr. Agarwala did the dressing once again at 5.00 p.m. as the earlier dressing was soaked due to oozing. The report of the wound swab culture showed that there was growth of Staph Aureus Bacteria. Therefore, on 12.04.1996, Dr. Chakravarthy performed wound Lavage under General Anesthesia and prescribed, Vancomycin. It was pleaded that though the patient complained of fever, which varied between 98.5ºF to 100ºF, subsequent to the operation on 29.03.1996, the doctors attending to the patient were unable to attribute any reason for the persistent fever. Once again, on 15.04.1996, second wound treatment was done and the wound swab was sent for culture and sensitivity, the result of which showed growth of Staph Aureus Bacteria. Dr. Agarwala changed the medicines and started giving Cap. Kiox 500 mg and Cap. Omizac together with Tab. Survector, an anti-depression drug as he suspected that the patient had mild fever due to nervousness. Despite change in the antibiotics, mild fever persisted and therefore on 19.04.1996, wound lavage was once again done under General Anesthesia and the wound swab was sent for culture and sensitivity. The exercises for the left leg were discontinued on 20.04.1996 and the patient was put on heavy dosage of antibiotics. On 23.04.1996 the drain tip was sent for culture and the report showed that there was no bacterial growth.
5. The patient pleaded that subsequent to the operation on 29.03.1996 the treating doctor did not personally examine the patient at any point of time, despite the patient’s requests to look into the post-operative infection, which had developed. On 25.04.1996, the patient was discharged and was prescribed antibiotics and Becosule capsules for a period of two weeks. It was stated that even at the time of discharge, the patient continued to have mild fever. Thereafter, on 03.05.1996, sutures on the lavage portion were removed by the treating doctor. The total bill for hospitalization was ₹2,12,589/- which was paid by the patient.
6. The patient and her husband tried to contact the treating doctor and Dr. Agarwala when the knee started swelling and the pain increased, but both were out of Mumbai. On 01.06.1996, as advised by Dr. Agarwala at the time of discharge, the patient got the X-Ray of her left knee joint and showed it to him on 04.06.1996. The treating doctor was not available at all and on being contacted, Dr. Agarwala gave an appointment two weeks later on 16.06.1996. However, as the pain got worse, the patient’s husband on 07.06.1996, contacted Dr. Agarwala again and requested him to give an early appointment as the knee was completely immobilized. After examination of the patient on 07.06.1996, she was advised to get herself admitted in the hospital immediately for second surgery as the infection was still prevalent. On 08.06.1996 at about 9.00 a.m., Dr. Agarwala together with two physicians, Dr. F.D. Dastur and Dr. V.R. Joshi, examined the patient and the operation was performed at about 12.00 noon. The patient continued to suffer from fever from 09.06.1996 till 19.06.1996, the date of discharge. At the time of discharge Dr. Agarwala expressed the possibility of rejection of Prosthesis by the human body and prescribed Klox 2gms/day, Cifran, Becosules, Autrin, Tramazac SOS for pain and Vitamin-C. The total bill for the second hospitalization period was ₹48,927/-, which was paid in full.
7. It was averred that it was only on 03.05.1996, that the patient was able to get an appointment with the treating doctor for the very first time, after the sutures were removed. Antibiotics were changed to Ceftum – 1gm per day for two weeks. Even then, the treating doctor was unable to explain the
continuing temperature and advised the patient to take fresh X-Ray and show him after two weeks. On 07.07.1996, he examined the new X-Ray and observed that the ESR was 70+ and advised her to stop all the formerly prescribed drugs and requested the patient to come on 29.07.1996. After discontinuation of the drugs, the pain increased and became unbearable. When the treating doctor was contacted and informed about the immense pain in the knee joint, she was asked to tolerate the same for some more time and ‘Rubinsol’ ointment was prescribed for local application. She was advised to come after two months with a new X-ray.
8. In spite of following all the instructions given by the treating doctor, the redness and the pain increased. Therefore, the patient and her husband approached Dr. A. Mullaji for a second opinion. He diagnosed a possible loosening of the joint and a fresh X-Ray was taken on 26.09.1996. This showed a distinct black line indicating loosening at the cement and bone contact area. In the second week of October, 1996 the patient consulted Dr. Sanjiv N. Amin, a qualified Rheumatologist, who diagnosed that there was rampant active infection of the knee. As there was no chance of successful revision surgery in India considering the extent of rampant infection in the knee, Dr. Amin advised the patient to go to U.S.A. for revision surgery. Dr. Amin contacted Dr. Chitranjan S. Ranawat of Lenox Hill Hospital, New York, who agreed to perform the revision surgery. On 11.11.1996 the patient, her husband and her daughter went to Lenox Hill Hospital where a fresh X-Ray was taken and other investigations were done, the result of which showed abnormal angulation of the knee joint with the angle pointing away from the midline. The X-Ray further showed settling of the posterior tibial femoral component into varus alignment and loss of bone. The findings showed Serological Sepsis. Dr. Ranawat asked the patient to stop all antibiotics for a week till the aspiration was done, to ascertain the type of infection and the sensitivity of the bacteria to the relevant antibiotic. On 20.11.1996, the patient’s left knee was aspirated and 10 cc of blood fluid was removed from the knee joint and the same was sent for culture and sensitivity. The culture report showed sparse amount of methicillin resistant Staph Aureus, which infection was detected in the first hospital.
9. Dr. Ranawat informed the patient that the operation for replacement of left knee would have to be performed in two stages. The first stage involved revision of left total knee arthroplasty with removal of components inserted by the Opposite Parties during surgery on 29th March 1996, debridement and insertion of antibiotics impregnated cement spacer and the second stage involved Re-implantation of left total knee arthroplasty after completing an antibiotics regimen of 6 weeks.
10. On 25th November 1996, the patient was admitted in Lenox Hill Hospital, New York and on the same day, the first stage of the surgery was performed on the left knee of the patient by Dr. Chitranjan Ranawat. The treatment rendered by him was explained in detail. During the surgery under Epidural anaesthesia, the knee joint was opened and the wound swab was taken and sent for culture and sensitivity. There was a large quantity of serosanguineous discharge from the knee. In order to continue the exposure, extensive adhesiolysis was done. Extensive synovectomy was performed. The loose tibial and femoral components were removed and Hohmann retractor was inserted, the fibrous membrane was curetted out of the intercondylar area of the femur and the tibia and following complete debridement, the knee was irrigated with copious amount of antibiotic solution. A moulded antibiotic impregnated cement spacer was inserted in the femoral condyle and the tibial condyle. Thereafter, the knee was relocated and held in approximately 5 degrees of varus. One constavae was inserted and the wound was closed in layers. Thereafter, the patient was discharged from the hospital on 5th December 1996 with instructions to carry out the Antibiotic regiment of 6 weeks under medical supervision. The patient took Antibiotic medical treatment under supervision of Dr. S. Orsher and upon its completion, on 7thJanuary 1997 fresh X-Ray were taken at the said hospital. The said X-Ray showed that lucency surrounding the cement/bone had interfaced and joint space narrowed medially greater than laterally and the cement had filled sites of previous total knee replacement. The pathological tests conducted on 13th January 1997 revealed portions of bone and periosseous soft tissue showing reactive new bone formation, fibrosis, granulation tissue and organizing fibrin.
11. It was averred that on 13th January 1997, the patient had undergone second stage of surgery, namely, Re-implantation of left total knee arthroplasty. After the second stage of the surgery, the patient stayed in Lenox Hill Hospital for 5 days and was discharged from the said hospital on 18th January 1997 with instructions to move with the Brace and carry out light flexing exercises and to visit Dr.Ranawat after 3-4 weeks for final discharge. Dr. Ranawat examined the patient and the X-Ray taken on the 6th February 1997 and informed that the revision surgery was successful and removed the brace and permitted the patient to return to India. Thereafter, the patient returned to India on 10th February 1997.
12. It was pleaded that subsequent to the revision surgery in Lenox Hill Hospital, mild fever and pain disappeared and the patient could now walk without support of a brace, stick or walker. It was averred that the treating doctor in the first hospital did not personally attend to the patient after the surgery despite repeated requests. The service to be rendered by a surgeon not only meant performing the surgery but also treating the patient post-operatively. It was pleaded that the infection had entered the wound in the operation theatre itself on account of improper sterilization of the surgical equipment or the cement used during the surgery, and that despite wound lavage having been carried out twice on 12.04.1996 and on 19.04.1996, the treating doctor and Dr. Agarwala did not take proper care and caution on account of which the infection was not eradicated. While performing the wound lavage they had failed to aspirate the fluid completely as a result of which infection persisted. The surgery was also not performed properly as there was an uneven gap in the knee joint. Though the patient and her husband repeatedly asked Dr. Agarwala as to where the treating doctor was, they were only informed that he was out of the Country. They were specifically informed that messages were given to the treating doctor, who was expected to examine the patient any day but that happened only in the month of June, 1996. It was only on account of negligence of all the Opposite Parties that the patient had suffered repeated surgeries and also had to undergo revision surgery in USA. Hence, this Complaint seeking direction to the Opposite Parties jointly and severally to pay ₹18,08,075/- with interest, compensation and costs.
13. The Hospital filed its Written Version stating that it was a 347 bedded hospital with a full-fledged department of Radiation therapy, a diagnostic centre having the latest MRI Scan facility, CT Scan, Nuclear Medical Centre, 24 hours Causality Department, ICU, ICCU and an Out Patient department. It has nearly 50 full time resident doctors, 60 non-resident doctors, who are available round the clock, assisted by full-fledged Team of trained para-medical and nursing staff. It was averred that the treating doctor has an arrangement with all his patients, whereby he performed surgical procedures in the Hospital and post-operative care was managed on a day to day basis by the concerned doctors who are part of a medical Team constituting the unit known as the ‘KTD unit’. In any event, if the treating doctor was not available for any reason whatsoever, the patient was attended to by the Team. This fact was made clear to each and every patient of his and by this arrangement, Dr. Agarwala, regularly coordinated in consultation with the treating doctor.
14. It was denied that the operation theatre or the surgical equipment was non-sterile or contaminated in any manner whatsoever. The patient was scheduled to be operated on 29.03.2016 in the operation theatre which has various air purification systems and controlled temperatures with periodical use of U.V. Radiation and effective ventilation system. The hospital has an Infection Control Committee headed by experienced medical consultants. This Committee reviewed and studied the air sampling tests which were carried out on a fortnightly basis. The Head of the Department, Anesthesiology and Operation Theatre, Nursing Superintendent were personally entrusted with the task of cleaning the operating room suits and ensuring that a sterile and aseptic environment was maintained therein. It was stated in the written version that all precautionary methods as per the normal medical practices were undertaken to keep the operation theatre hygiene. It was noted that air sample reports of the operation theatres were well within normal limits and internationally recognized medical protocol was practiced in respect of continually aseptic and sterile condition. It was denied that there was any negligence on behalf of the hospital causing the patient’s infection.
15. The treating doctor in his defense averred that the patient first met him at his private consulting room with complaint of pain in the knee. He examined the patient and after necessary investigations advised her to undergo total knee replacement of her left knee and as he performed surgeries only in three specific hospitals he advised her to select one of them. It was averred that he had clearly informed the patient and her relatives that the advised surgery carried its own inherent risk as in any other surgery such as infection etc., and that he operated only on one day at first Opposite Party hospital and thereafter the patients were managed by Dr.Sanjay Agarwala and his Team. After understanding this fact, the patient and her relatives elected for admission in the said hospital. Upon admission, her condition was evaluated by Dr. Agarwala and Dr. Chakravarthy in their respective capacities and she was found to be fit for surgery.
16. It was pleaded that the said operation was successfully performed; the patient was monitored postoperatively; the temperature was normal but for the expected rise immediately after the surgery; medical investigations did not show any evidence of infection having set in; on 09.04.1996, the staples on the surgery site were removed; necessary dressing was carried out; on 10.04.1996 oozing was noticed, swab was sent for culture and sensitivity and that on 12.04.1996 de-sloughing and lavage of the wound was carried out. It was averred that the culture and sensitivity report was made available on 11.04.1996 and immediately Klox and Amikcin antibiotics were advised; that on 19.04.1996, the patient was taken for wound debridement and secondary suturing; appropriate sized drain tube was inserted, wound lavage fluid was sent for culture and sensitivity; the fluid drain was monitored; on 23.04.1996 the drain tube was removed and the drain tip was sent for culture and sensitivity. She was found fit, hence was discharged on 25.04.1996.
17. It was submitted that the patient followed up for removal of secondary sutures on 03.05.1996, when the treating doctor examined the operated site and detected no abnormality. On 07.06.1996, the patient contacted Dr. Agarwala and all her parameters were monitored and examined. On a complaint of pain, swelling and redness together with low grade fever, Dr. Agarwala decided to do a Synovectomy. The patient was discharged on 19.06.1996. It was pleaded that the treating doctor had made it clear in no uncertain terms that the patient would be monitored by Dr. Agarwala post-operatively. The ‘KTD Team’ as they are called, informed and posted the treating doctor about the condition and progress of the patient twice daily.
18. It was submitted that during the period from 30.03.1996 to 06.04.1996 the patient never complained of any pain and was comfortable with normal clinical parameters. Only when the investigation reports showed slightly elevated WBC count, immediate preventive measures were taken by starting the patient on necessary antibiotics. As the report dated 12.04.1996 showed that discharge from the operated site had Staph Aureus bacteria which was sensitive to Methicillin, appropriate antibiotics were prescribed. Similarly, smear culture reports dated 16.04.1996, 19.04.1996 and 21.04.1996 showed no growth of organism and the patient was advised against strenuous movement of the knee joint as the secondary suturing was carried out. The patient was discharged in good condition on 29.04.1996 and no negligence could be attributed to the treating doctor as all care and caution was taken by him and his Team.
19. It was denied that he did not attend to the patient after the surgery on 29.03.1996. It was stated that the patient and her relatives were explicitly explained that post-operative surgical care of the patient would be managed by the ‘KTD Team’ of doctors and hence, the Complaint against him may be dismissed with costs.
20. Dr. Agarwala filed his written statement reiterating the line of treatment rendered by the treating doctor. He averred that during the period 29.03.1996 and 06.04.1996, there was no rise in the temperature of the patient; on 09.04.1996, staples on the surgery site were removed; necessary dressings were carried out; on 10.04.1996 slight oozing was noticed; culture and sensitivity tests were done; patient was put on antibiotic Augmentin and Vancomycin; on 12.04.1996 lavage of the wound was carried out; report on 11.04.1996 showed Staph Aureus Bacteria and antibiotics were changed to Klox and Amikacin.
21. It was further averred that the patient was taken for wound debridement and secondary suturing on 19.04.1996; appropriate size drain tube was inserted; lavage was sent for culture and sensitivity; on 23.04.1996 the drain tube was removed and drain tip was sent for culture and as there was no bacteria growth in the report, she was discharged on 25.04.1996. She was followed up by secondary sutures removed on 3.5.1996; subsequently, the patient contacted him on 07.06.1996 and upon clinical examination as there was swelling, he decided to do Synovectomy which was successfully carried out. He submits that all care and caution was taken by his Team and that the patient was also seen by Dr. V.R. Joshi and Dr. F. D. Dastur, who are Consultants and part of medical Team. It was denied that they had advised fusion of knee joint as the only alternative. The patient was treated in a conservative manner with the sole objective of conserving the joint. It was denied that the Operation Theatre was unsterile; implant has been fixed in a misaligned position; heavy dose of antibiotics had made the bacteria resistant; that revision surgery was not possible anywhere in India and that the patient was discharged in an unfit condition.
22. It was pleaded that he had taken utmost care with reasonable skill and that he had performed his duty keeping in mind the best interest of the patient and therefore, no negligence can be attributed to him.
23. The State Commission allowed the Complaint observing as follows:
“28. Now, we proceed to deal with allegation of negligence in performing the knee joint surgery and reported uneven gab in knee joints as in Para 6(c)&(f). Two documents available on the record are very much important for our consideration to deal with this allegation. First one Medical history/summary recorded by Dr.Sanjiv Amin, Rheumatologist on 07/10/1996 and forwarded to Dr.Chitranjan Ranawat of Lenox Hill Hospital, New York, USA. Second one is the hospital record of clinical examination of the patient carried out on 08/06/1996 by the opponent no.3 available in the complaint compilation [at Page No.155]. Firstly, we deal with findings of the clinical examination. Admittedly, Dr.Sanjay Agarwala i.e. opponent no.3 examined the patient on 08/06/1996 for complaint of infection post-operative knee joint wound. It is recorded by the opponent no.3 as “Prosthetic components found loose”. Patient was under the care of the opponents till July 1996 as the last visit to the opponent was on 29/07/1996. It is constant case as put by the complainant that no relief from continued pain and occasional fever was even experienced during the post-operative period. Since this is a hospital record/case paper, it cannot be denied by the opponent. Complainant heavily relied on the opinion of the opponent no.3 about possibility of ‘rejection of prosthesis components’ by body of patient as a possible reason for not getting relief. It was also reported and advised by the opponent no.3 that in such cases, fusion of the knee joint was the only alternative though later on denied by the opponent no.3 in his written version. However, complainant has filed affidavit evidence reiterated the opinion of the opponent no.3 about loosening of prosthetic components. Therefore, mere denial of the opponent no.3 is of no avail to the opponents. There is no reason as to why the statement made in the complaint and supported by affidavit evidence needs to be ignored especially when it is supported by the documentary evidence, mainly recorded opinion of opponent no.3 in the hospital case papers. There is no record to show that what steps have been taken by the opponents to address ‘loosening of prosthetic components’. Opponents have failed to bring on record documentary evidence to show what corrective steps were taken after clinical observations. Since the complainant did not get the relief, approached first time Dr.A.Mullaji for second opinion who diagnosed possible loosening of joint which was evidenced by carrying out fresh X-Ray which revealed distinct black line at the cement and bone contract [loosening]. Opinion of Dr.Amin vindicated, clinical opinion of the opponent no.3 in this behalf who opined “Prosthetic components found loose”. Thus, found no relief from continuous pain and the fluid oozing out of knee joint wound, complainant consulted Dr.Sanjiv Amin, a qualified Rheumatologist.
29. Now, we will deal with medical summary recorded by Dr.Sanjiv Amin, Rheumatologist brought on record by the complainant and relied upon by both the parties. The learned counsel of the opponents heavily relied on this medical summary to relate that in case of patient with Rheumatoid Arthritis [RA] indicating total knee replacement, risk factor of infection is high. Complainant/patient, as reported by Dr.Amin, suffered from Polyarthritis as early as in 1976. Patient was put on treatment and administered immunosuppressive drugs as treatment of RA and on one occasion, the patient was bed-ridden in the year 1979. Therefore, according to him the patient was prone to get infection which was treated by the opponents. However, in the said report it is recorded that “X-Ray of the left knee that was obtained last month revealed early loosening of tibial prosthesis…………” and “For past one week, the pain and swelling re-appeared and on examination, there is marked warmth, effusion and 20 degree flexion deformity. She was unable to bear weight on the left knee without the support of splint……”. The learned counsel of the opponent only partly relied upon this medical summary and conveniently ignored to refer other observations from the said summary. This medical summary/record of the complainant has to be considered in toto. The Lerned Counsel Mr.Naidu did not refer to recorded observation of Dr.Amin about effusion and 20 degree flexion deformity and loosening of the tibial prosthesis. Early loosening of tibial prosthetic components has been suppressed as history recorded by Dr.Sanjiv Amin. Here, at this point of time, Dr.Amin advised for revision surgery and referred the complainant/patient to Dr.Chitranjan Ranawat, Lenox Hill Hospital, New York, USA. Complainant underwent two stages surgery at Lenox Hill Hospital. First stage was for revision of left total knee arthoplasty for removal of components inserted by the opponents during surgery on 29/03/1996 carried out by opponents. Second stage surgery was carried out by Dr.Ranawat for re-implantation of left knee arthoplasty. There is enough material on record to demonstrate that the complainant left for USA, admitted in Lenox Hill Hospital and underwent two stages corrective surgery for which the complainant spent an amount of US$ 43,03.84 in the year 1997 equivalent to Rs.15,74,370/- at the then prevailing rate followed by other expenses of Rs.2,33,705/- for to & fro travel. These submissions are supported by affidavit evidence of the complainant. Therefore, there is no reason to disbelieve the statements made on the affidavit, particularly in absence of any documentary evidence contrary brought on record by the opponents. Interestingly, opponents have failed to file affidavit evidence. Two stage revision surgery was necessitated as can be seen from record owing to loosening of tibial prosthetic components as recorded by the opponent no.3 during clinical examination of the patient on 08/06/1996. For want of corrective measures by the opponents, the complainant left in painful post-operative conditions. Failure of the opponents to attend the clinically diagnosed problem certainly attributes to the medical negligence leading to deficiency in service. Though the opponents possess skill and knowledge of their subject, but failed to take corrective steps”.
24. Heard both sides at length.
25. The brief points that fall for consideration are whether:
i) Dr. K. T. Dholakia, the treating doctor, was negligent in his treatment of the patient, during surgery and post operatively and the reasons for the onset of infection?
ii) ‘Duty of Care’ as laid down in medical jurisprudence had been followed by the treating doctor?
iii) Dr. Agarwala and his KTD unit had taken all precautionary measures as required under normal medical parlance, while dealing with the infection that has admittedly set in and was the patient monitored properly by the Team post-operatively?
iv) The hospital is vicariously liable for the acts of the treating doctor, despite his death on 17.06.2004, during the pendency of the Complaint?
26. At the outset, we first address ourselves as to whether there was any negligence by the treating doctor during the performance of the surgery or post-operatively and also the reasons for the emergence of the infection.
27. Learned counsel for the patient submitted that it is only on account of unhygienic atmosphere/equipment used in the Operation Theatre of the hospital that the patient contracted Staph Aureus bacteria which ought to be construed as ‘negligence’ during the surgical procedure.
28. Learned counsel representing Dr. Agarwala vehemently argued that no negligence can be attributed during the process of surgery and that infection Staph Aureus is an endogenous infection and that patients of Rheumatoid Arthritis are more prone to such infections and relied on medical literature titled “Indian Journal of Rheumatology 2011 March; Vol.6, No.1” by Kumar and Malhotra. For easy understanding of the Counsel’s submission regarding Staph Aureus Infection, relevant extract of the medical literature is reproduced hereunder:-
“Every human being is colonized with S. epidermidis. The normal habitats of these staphylococci are the skin and the mucous membranes. The major habitats of the most pathogenic species. S. aureus are the anterior nares and perineum.
Neonates are readily colonized by S. epidermidis and often by S. aureus. Newborn infants usually acquire S. aureus first on the skin (umbilical area) and later in the nose. Soon after the neonatal period some individuals become permanent carriers, often with the same strain”.
“Although some spread of S. aureus may occur within a family, generally the established flora of the nose prevents acquisition of new strains. However, colonization with other strains may occur when antibiotic treatment is given that leads to elimination of the susceptible carrier stain. Because this situation occurs in the hospital, patients may become colonized with resistant staphylococci. Carriage rates of S. aureus in the nares of people outside the hospital varies from 10 to 40%. Hospital patients and personnel have higher carriage rates. The carriage rates of patients may increase during their stay in hospital due to colonization and nosocomial transmission. The rates are especially high in patients under going hemodialysis and in diabetics, drug addicts and patients with a variety of dermatologic conditions.
The carrier state is clinically relevant because carriers undergoing surgery have more infections than non carriers. This has led to the application of mupirocin ( a local antibiotic) to the anterior nares in some centres just before open heart surgery to lower the incidence of post operative wound infection. Dispersers among the carriers are important because dispersers not only transmit staphylococci by direct contract, but also by air-borne transmission. Heavy perineal carriers almost always disperse large amounts of staphylococci. Staphylococci may accumulate rapidly on the clothes and bedding of dispersers and may disseminate when these fomites are disturbed”.
“Dust particles containing staphylococci may be carried for considerable distances”.
Based on the literature, learned Counsel submitted that Staph Aureus is a common infection which was treated by following all the standards of normal medical parlance; initially the patient was put on antibiotic Augmentin and after examining the culture and sensitivity reports, received after 48 hours, the antibiotics were changed to Klox and Amikacin. In support of his argument, he relied on the Affidavit filed by Dr. Nandu S. Laud, reproduced here as under:-
“Having gone through the papers of Mrs. V. Kotwal’s, whose d.o.b. is December 27th 1994, resident of 759, Dadar Parsi Colony, Mumbai 400 014, who underwent surgery of total knee replacement at P.D. Hinduja Hospital and developed post operative infection.
I desire to opine that postoperative infection following a total knee arthroplasty is well documented in international literature. The current infection rate is less than 1%. Papers also indicate the surgeons operating on patient control the infection by re-exploration, lavage and antibiotic. Occurrence of infection in the patient with total knee replacement is not primarily due to negligence. The infection usually occurs from inoculation of the wound during surgery or endogenous source from the patient’s own body.
Having gone through the case papers, I am of the opinion that both Dr. K.T. Dholakia and Dr. Sanjay Agarwala have managed (postoperative infection and ensuing complication), as prudent doctors would do in the said circumstances. Hence, I am of the opinion that proper Medical Treatment skill and late Dr. K.T. Dholakia and Dr. Sanjay Agarwala extended care to the patient at P.D. Hinduja Hospital”.
Arguing that patients of Rheumatoid Arthritis are more prone to such infections, he drew our attention to the Indian Journal of Rheumatology 2011 March, Vol. 6 No.1 wherein it is stated as follows:-
“The patients suffering from RA have an altered immune response and the general debilitation associated with this disease renders them more susceptible to infection. There are numerus sites of skin breakdown associated with bacterial colonization. The patients with RA have an increased incidence of joint infections and respiratory infections per se.
The incidence of infection in rheumatoid patients is higher than osteoarthritis as RA patients have more avenues open for infection. Several studies support the association of RA with increased risk of prosthetic joint infection.
The diagnosis of prosthetic joint infection following TKA in patients with RA is not always easy. Joint effusion after TKA is considered as a manifestation of certain inflammatory reactions within prosthetic joints. Niki et al, investigated causes of joint effusion following TKA and analyzed the phenotypic characteristics of synovial fluid leukocytes for each cause”.
“In this series of patients of RA, 40.6% of prosthetic joint infection was caused by S. Aureus. These patients were more likely than the other patients to be colonized by S. aureus in their oropharynx o. on their skin. Bacteremic episodes involving S. aureus are common in this patient population, allowing for potential bacteremic seeding of a joint prosthesis.
These patients of RA have a thin skin and often suffer from peripheral vasculitis and are thereby predisposed to wound healing complications”.
29. Learned Counsel for the patient relied on an article by Vijay Kumar and Rajesh Malhotra in “Prosthetic Joint Infection in patients of rheumatoid arthritis undergoing total knee replacement” , the relevant extract is reproduced here as under:-
“The fact that patients with RA are at significantly higher risk of prosthetic joint infections emphasizes the importance of utilizing all possible pre and postoperative prophylactic measures in this high risk group to prevent and treat any signs of infection as early as possible. Adequate antimicrobial prophylaxis, gentle soft tissue handling, use of antibiotic impregnated bone cement, vigilance during the postoperative period and expeditious management of wound healing complications can go a long way to prevent this dreadful complication”.
As seen from the submissions and the medical literature relied upon by the Appellants, it is seen that patients with Rheumatoid Arthritis are at a higher risk of prosthetic joint infections. In fact, in such a situation, the care taken by the treating doctor, of a ‘high risk patient’ assumes much more significance.
30. The fact remains that Staph Aureus Infection admittedly did set in and on 09.04.1996 i.e., 10 days after the surgery, Serosanguineous discharge was seen oozing from the operated wound and the culture report obtained on 11.04.1996 showed growth of Staph Aureus bacteria. Therefore, the onus shifted to the hospital and the treating doctor together with his Team to explain as to how the infection had set in. Mere submission that Rheumatoid Arthritis patients are prone to infection and therefore, the patient contracted the same, does not suffice.
31. The Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute – (2004) 8 SCC 56 held that “Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities.”
32. To reiterate, it is for the hospital and the Team of doctors who attended on the patient to explain as to how the infection had occurred. It is pertinent to note that the submissions made by the learned counsel representing Dr. Agarwala to the effect that the infection can be endogenous, had not been pleaded at all in their Written Version or in the treatment record filed before us. The material on record does not mention anywhere the reason for the bacteria to have developed. Having regard to the fact that the infection had set in during the patient’s stay in the hospital and that there was no specific pleading in the Written Version of the treating doctor as well as Dr. Agarwala giving any substantial reason for the infection having set in and finally in the absence of any Affidavit, filed by way of Evidence, rebutting the contention of the patient that it was a hospital derived infection, we are of the considered view that the Opposite Parties have failed to discharge their onus as envisaged by the Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute (supra).
33. Now, we address ourselves as to whether the patient was properly monitored post-operatively and also if ‘Duty of Care’ as specified in medical jurisprudence had been followed by the treating doctor and his Team?
34. In a catena of judgements, the Hon’ble Supreme Court has laid down the essential components of ‘Negligence’ as follows:-
- The existence of a duty to take care which the defendant owes to
the plaintiff;
2. The breach of that duty towards the plaintiff and
- Damage or injury by the complainant as a result of such breach.
The ‘Duty of Care’ for a medical professional starts from the time the patient gives an implied consent for his treatment and the medical professional accepts him as a patient for treatment, irrespective of financial considerations. This duty starts from taking the history of the patient and covers all aspects of the treatment, like writing proper case notes, performing proper clinical examination, advising necessary tests and investigations, making a proper diagnosis, and carrying out careful treatment.
35. In 1969, the Supreme Court in the case of Dr.Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole AIR 1969 SC 128 held:-
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose,
- he owes a duty of care in deciding whether to undertake the case,
- he owes a duty of care in deciding what treatment to give and,
- he owes a duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.
36. This means that when a medical professional, who possesses a certain degree of skill and knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care, and knowledge.
Failure to act in accordance with the medical standards in vogue and failure to exercise due care and diligence are generally deemed to constitute medical negligence.
37. In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.
38. Recently Justice S.B.Sinha in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, case has preferred Bolitho test to Bolam test. The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decision also says that the court should take into account patient’s legitimate expectations from the hospital or the concerned specialist doctor.
39. The legitimate expectation in this case is that the Doctor was specifically chosen by the patient with a hope that he would exercise due care from the point of admission to his discharge and review his condition thereafter.
40. There is however, a difference between standard of care on the one hand and degree of care on the other. In the case of a doctor, the standard of care expected of him remains the same in all cases, but the degree of care will be different in different circumstances. Thus, while the same standard of care is expected from a generalist and a specialist, the degree of care would be different. A higher degree of skill is expected from a specialist when compared to that of a generalist.
41. In the instant case, the treating doctor was a Specialist in knee Surgery operations and was consciously chosen by the patient, based on his reputation of having conducted several such surgeries. Therefore, not only a higher degree of skill, but also a higher ‘standard of care’ was expected from such a Specialist.
42. Learned Counsel appearing for the Hospital and also for Dr. Agarwala argued that at the initial consultation itself, the patient was informed by the treating doctor that he operates only on one day at the hospital and that Dr. Agarwala who is highly qualified would take care of the patient post-operatively. The patient having accepted this line of treatment had admitted herself in the hospital and therefore, now cannot contend that the treating doctor had never attended to her post-operatively.
43. The question which falls for consideration in a scenario where admittedly a high risk Rheumatoid Arthritis patient had contracted infection is whether the treating doctor can take a stand that he would only operate on the patient and that his Team known otherwise as ‘the KTD Team would take care of the patients post-operatively’? The treating doctor in his written version pleaded that during the period from 29.03.1996 to 06.04.1996, there was no rise in the temperature of the patient and that only on 09.04.1996 when the staples on the site of the surgery were removed, a slight oozing was noticed, which was sent for culture and sensitivity. Though he has averred that on 12.04.1996 desloughing and lavage of the wound was carried out, nowhere it is stated that he had attended to the patient. On 19.04.1996, the patient was taken for wound debridement. At the cost of repetition, it was never specifically pleaded by the treating doctor that he was present either during the surgery, or subsequently thereafter, to monitor the line of treatment being given to the patient.
44. It was submitted by the learned Counsel for the patient that it was only on 03.05.1996 that the patient was seen by the treating doctor after repeated requests to the ‘KTD Team’ that they wanted an appointment with the treating doctor to examine the patient who was suffering from pain and infection. The learned counsel appearing for the hospital drew our attention to Discharge Summary dated 25.4.1996 which notes in the operative findings that on 12.04.1996 and 19.04.1996, the knee desloughing and secondary suturing was done by the treating doctor. On the contrary, a perusal of the hospital notes on 12.04.1996 and 19.04.1996 only refers to the Surgeon’s name as ‘K.T. Dholakia’ but is not signed by him. In fact his Assistant’s name on 12.04.1996 is given as ‘Dr. Chakravathy’ and on 19.04.1996 the doctor’s name is given as ‘Dr. Agarwala’. In the absence of any pleading by the treating doctor himself in his written version that he had attended to the patient post-operatively and also in the light of his own submission that he operates only on one day at this hospital and the post-operative care would be taken care by the ‘KTD Team’ and the operation notes which do not bear his signature,it cannot be established that the treating doctor ever personally attended to the patient before 03.05.1996.
45. It is pertinent to note that the patient in her rejoinder to the Written Version filed by the Hospital before the State Commission has categorically pleaded in para 21 as follows:-
“21. With reference to paragraph 5 of the Written Version of Opposite Party 1, the Complainant repeats, reiterates and confirms what is stated in paragraphs 1 to 6 of the Complainant and denies what is contrary thereto or inconsistent therewith. The Complainant is not aware and therefore, does not admit that the Opposite Party No. 2 has any arrangement with the patients that the postoperative management on continual day to day basis is entrusted to the concerned doctors who are part of the medical team as alleged. The Complainant emphatically states that the Opposite Party No. 2 never informed the Complainant and/or to her husband that the postoperative management or treatment on continual day-to-day basis would be entrusted to the doctors who were alleged to be part of the medical team as alleged. The Opposite Party No. 2 categorically informed the Complainant and her husband that since he was attached to the Hospital of Opposite Party No.1, there would be no problem for him to attend to the Complainant almost every day because the Opposite Party No. 2 performs the operations in the said hospital. In any event, the Opposite Party No. 2 who operated upon the Complainant was duty bound to attend to the patient after the operation and to take postoperative care. This cannot be left to the medical team as alleged. The Complainant states that the Opposite Party No.2 never attended to the Complainant after the surgery. The Complainant has paid fees to the Opposite Party No.2 not only for performing surgery but also for taking postoperative treatment of the Complainant by the Opposite Party No. 2 himself, it is important to note here that admittedly after the surgery, Straph Aureus bacterial infection had crept in the surgical wound. It is also an admitted position that the medical team at the hospital had informed the Opposite Party No. 2 about the postoperative complications. However, the Opposite Party No.2 did not bother to attend to the Complainant even for a day. Therefore, having full knowledge of the postoperative complications, the Opposite Party No. 2 deliberately did not attend to the Complainant. This was deficiency in service or negligence in performing his duties as a surgeon. The Complainant states and submits that either the medical team had failed to inform the Opposite Party No. 2 or the Opposite Party having full knowledge of the postoperative complications deliberatively failed to attend to the Complainant and/or to discharge his duties to take postoperative care of the Complainant for which he was already paid by the Complainant. The Complainant denies the allegations made in the said paragraph and puts the Opposite Parties to the strict proof of the allegations made therein”.
46. It is relevant to note that the patient in para 23 of the rejoinder has specifically averred that the duty of the treating doctor does not end with performance of the Surgery. He was duty bound to take post-operative care of the patient and contended that the alleged coordination between the treating doctor and the so called ‘KTD Team’ was false. It was denied that the treating doctor had any time informed the patient and/or her relatives of any inherent risk in the surgery. It was also stated that the treating doctor was regularly performing surgeries in the same hospital and was as such available, but still did not think it necessary to personally attend to the patient.
47. The Opposite Parties did not file their Affidavit rebutting the contentions raised in the Rejoinder.
48. The question that arises here is whether the ‘Duty of Care’ as defined in medical jurisprudence and by the Hon’ble Apex Court in Laxman Balkrishna Joshi vs Trimbak Bapu Godbole and Anr. (supra), ends with the performance of the surgery? The material on record establishes that the treating doctor had never attended to the patient personally till 03.05.1996 despite the patient having rampant infection necessitating wound debridement, desloughing and subsequent wound lavage. Assuming without admitting that the treating doctor was informed about the condition and progress of the patient, it was all the more significant that the treating doctor had periodically examined the patient, when it is the stand of his own Team that the patient having Rheumatoid Arthritis is a ‘high risk patient’ prone to infection.
49. In P.B. Desai vs State of Maharashtra & Anr. (2013)15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained as follows:-
“Once, it is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of ‘duty to take care’ is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal ‘duty to treat’ may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the Sick’ and Clause 13 cast obligation on the part of the doctors with the captioned “Patient must not be neglected”.
50. Having regard to what the Hon’ble Supreme Court has laid down about the ‘Duty of Care’ to be followed by a medical professional viewed from any angle, it cannot be construed that ‘Duty of Care’ of a treating doctor ends with the ‘Surgery’. The contention of the patient that though the treating doctor was performing surgeries in the same hospital, did not choose to attend to her, despite requests, was specifically not denied by the treating doctor. The fact remains that the patient had specifically chosen the treating doctor and the hospital only based on his reputation of having conducted several such surgeries and if the treating doctor was not available and did not attend to the patient despite several requests seeking for his appointment, we are of the considered opinion that ‘Duty of Care’ to be expected from a treating doctor when his patient was suffering from rampant infection, was not performed by the treating doctor in this case.
51. Now we address ourselves as to whether there was any negligence on the part of Dr. Agarwala?
52. Learned Counsel appearing for Dr. Agarwala submitted that post-operatively ‘KTD Team’ took all care and precautions to perform wound debridement, wound lavage, on 12.04.1996 and 19.04.1996 and also Synovectomy on 07.06.1996 as infection had still not been eradicated. On 08.06.1996 the Team once again examined the patient; she was taken for second operation and discharged on 19.06.1996. Learned Counsel for Dr. Agarwala submitted that the patient has a history of Rheumatoid Arthritis; that Staph Aureus infection is a resident and endogenous infection; that the entire ‘KTD Team’ acted in consultation with the treating doctor; that suit abates against the treating doctor as he had died in an action against tort; that the State Commission has not taken into consideration Dr. Laud’s opinion which says that infection is common and endogenous; that patients of Rheumatoid Arthritis are more conducive to infection; that the hospital treatment record shows that the right antibiotic was prescribed for Staph Aureus infection; that the Serosanguineous fluid was sent for culture and sensitivity at the right time; wound lavage was done keeping precautions in mind; that there is no evidence that the infection led to loose prosthetic infection and that ‘KTD Team’ under Dr. Agarwala taken all care and caution as per standards of normal medical procedure.
53. The following chronological dates would give proper and easier understanding of the events that had followed post-operatively and the care taken by the ‘KTD Team’:-
| Dates |
Events
|
| 15.02.1996 | The Complainant for treatment consulted Opposite Party No. 2, Dr. K.T. Dholakia, who advised the Complainant to undergo Total Knee Replacement. |
| 27.03.1996 | Complainant got admitted at the O.P. No. 1 hospital and on the same say tests were done and her medical history was recorded. |
| To reduce inflammation Inocin and Asprin were prescribed to the Complainant. |
| O.P. No. 2, Dr. K. T. Dholakia, assured the Complainant that there was no need to worry and that he would also be there for post-operative care during convalescence after the operation to see that nothing goes wrong. |
| 28.03.1996 | Reports of the pre-operative investigations were absolutely normal and clear. The Complainant did not even have cold, cough or fever. |
29.03.1996
at 8:30 a.m. | Complainant was taken to Operation theatre and total Knee Replacement was conducted under General Anaesthesia by O.P. NO. 2 with the assistance of O.P. No. 3 at the O.P. No.1 hospital. |
29.03.1996
at 3: p.m. | Complainant was brought out of the Operation Theatre and her left leg was put in a plaster after the operation. |
| 30.03.1996 to 06.04.1996 | Complainant repeatedly complained of constant pain in the operative area. |
| 30.03.1996 to 04.04.1996 | Complainant was given exercise for her left leg even though she repeatedly told O.P. No. 3 and other hospital staff of constant pain. |
| 05.04.1996 | Complainant was made to walk with the help of the walker in spite of pain. |
| 06.04.1996 | Dr. Chakravarthy assisted by other doctors removed the plaster and cleaned the wound and dressing was done. |
| The wound was found to be swelling and had redness. |
| O.P. No. 3 was informed about the swelling and redness so he directed the removal of staples. |
| 09.04.1996 | There was Serosanguineous Discharge from the operation wound. |
| 10.04.1996 | Wound swab was sent for culture. |
| 10.04.1996 | Dr. Chakravarthy did the dressing at 10:00 a.m. and opened the wound by 1:00 p.a. to facilitate drainage. However, oozing did not stop. |
10.04.1996
at 5:00 p.m. | O.P. No. 3 did the dressing as the earlier dressing was soaked due to oozing. |
| 11.04.1996 | The oozing did not stop and therefore the O.P. No. 3 again sent the wound swab for culture. |
| 12.04.1996 | The report of the wound swab culture showed growth of Staphylococcus Aureus Bacteria. |
12.04.1996
at 10. A.m. | Complainant was taken to the Operation theatre and wound lavage was done under General Anaesthesia. However, the oozing did not stop. |
| 12.04.1996 | O.P. No. 3 suspected that due to nervousness the complainant might had mild fever. Therefore, she was given Tablet Survector which is an anti-depression drug. However, the mild fever persisted. |
| 15.04.1996 | Second wound treatment was done and the wound swab was again sent for culture and sensitivity. The reports again showed growth of Staphylococcus Aureus bacteria. |
| 19.04.1996 | Second wound lavage was done under G.A. and the wound was sutured and the swab was sent for culture. |
| 20.04.1996 | As the mild fever persisted, the exercises were discontinued. |
| 23.04.1996 | Drain tip was sent for culture and the report showed that there was no bacterial growth. |
| 25.04.1996 | Complainant was discharged from O.P. No. 1 hospital. |
| At the time of discharge and even after that the Complainant had persistent fever. |
| 03.05.1996 | Sutures on lavage portion were removed by the O.P. NO.2
|
| Total Bill for the operation and hospitalization was Rs 2,12,589/- and Rs 4,200/- and the same was paid by the complainant in full.
|
| Subsequently part of the amount was reimbursed by the insurance company. |
04.05.1996 to 04.06.1996
| Complainant was on antibiotics so the pain subsided. Mild fever persisted and after the prescribed dose of antibiotics was over the knee started swelling and pain increased. The knee joint became very warm. |
04.05.1996 to 04.06.1996
| Complainant and her husband tried to contact O.P. Nos. 2 and 3 but both were out of Bombay. |
04.06.1996
| O.P. No. 3 returned to Bombay but O.P. No. 2 was unavailable. |
07.06.1996
| Complainant was having severe pain in the knee joint and the knee was immobilized. |
07.06.1996
| O.P. No. 3 asked the Complainant to get herself immediately admitted at the O.P. No. 1 hospital for a second surgery stating that the infection had not been eradicated. |
07.06.1996
| Complainant got herself admitted at O.P. No. 1 hospital. |
08.06.1996 at 12:00 p.m.
| Second operation was conducted on the Complainant. |
| 08.06.1996 to 19.06.1996 | The fever continued. O.P. No.3 expressed concern about the mild fever and stated that it could be that the infection had not been eradicated completely. |
19.06.1996
| Complainant was discharged from O.P. No.1 hospital. |
| Total bill for the second operation and hospitalization was Rs.48,297/- |
19.06.1996
| O.P. No. 3 did not reject the possibility of rejection of Prosthesis by the human body and said that is such a possibility occurred, the fusion of the knee joint was the only alternative. |
54. The fact remains that the non-diabetic patient suffered from severe infection from 09.04.1996 till 19.06.1996, first contracted during her stay in hospital and which continued thereafter requiring her to undergo revision surgery in United States as the infection was not eradicated. The patient was treated by Dr. Chitranjan S. Ranawat of Lenox Hill Hospital, New York. The patient was referred to by Dr. Sanjiv Amin, Rheumatologist on 07.10.1996 to Dr. Ranawat. In his referral letter, Dr. Amin had recorded the patient’s history as follows:-
“Dr. Chitranjan S. Ranawat, M.D.
Lenox Hill Hospital
130, East 77th Street
William Black Hall
11th Floor, New York
NY 10021
United State of America
Dear Dr. Ranawat
Re: Mrs. Veera Kotwal; dob 27 Dec.1944
759 Road No.7, Parsi Colony Dadar East Mumbai 400 014
This patient is a housewife and I examined her earlier week, chiefly for pain at the left knee that has an infected prosthesis.
The polyarthritis onset was in early 1976, the hands-wrists were the first affected, and the majority of the limb joints were sore by mid 1977. The associated constitutional symptoms were moderate grade fatigue and 15 kilogram loss of body weight in the initial 2 or 3 years. She was almost bedridden in 1979, and consulted a rheumatologist in 1980 who prescribed Aurothiomalate injections. The chrysotherapy dampened the disease activity remarkably well, and for the subsequent 5 years she was fairly mobile and attending to all household chores. A cutaneous reaction that was presumed to be due to Aurothiomalate in 1985, resulted in omission of the therapy and thereafter she is taking buffered Aspirin and Indomethacin.
The left knee gelled frequently in 1995, and occasionally locked, besides having severe load bearing pain and she was recommended total knee replacement. Pain and inactivity stiffness at the remaining limb joints was alleviated by ingesting NS AIDs, and she was coping well with the disease. She is not diabetic. The surgery was done at the Hinduja Hospital on 29 March 1996 and infection was observed at the lower third of the scar when the dressing was undone a week later. The discharge grew staphylococcus Aureus, and she was administered Cloxacillin 2 gm/day for 3 weeks. The wound was cleansed and debrided on 18.4.96 and resutured Oral Cefuroxime 500 mg BID for a fortnight was also ingested in May 1996, and the incision scar healed satisfactorily.
However on 6.6.96, there was intense pain and increase in swelling at the left knee, and she was readmitted to the Hinduja Hospital for an open lavage and debridement. At discharge from the hospital on 19.6.96, the sutures were removed and the scar was clean Ciprofloxacillin 500 mg BID was continued till 5 July 1996, and she continued to rest at home.
For the past 1 week, the pain and swelling has reappeared and on examination there is marked warmth, effusion and 20 degree flexion deformity. She is unable to bear weight on the left knee without the support of a splint. The clinical picture is typical of active infection in the knee. However, she does not have fever, and the blood pressure and pulse rate are normal. A careful search for possible suppurative focus on general and systemic examinations respectively was negative. The wrists dorsiflexion is 70o on both sides, hands grip strength is reduced by a quarter, shoulders and elbows have mild tenderness and full range of movement, at the right knee the synovitis signs are moderate, whereas they are minimal at ankles and feet. Hips and spine are normal.
The X-Ray of the left knee that were obtained last month reveal early loosening of the ubiai prosthesis, and the blood counts are normal.
She has agreed to travel to Baltimore and be admitted to Hospital under your care for further management. As you know, the expense is a major concern for Indians seeking health care in the U.S.A. and she needs an estimate of the costs involved assuming that she needs to undergo the two stages surgical rehabilitation with re-implantation of a new prosthesis. I request for your response at the earliest possible, preferably before 11 October as I am leaving from here on 12 October 96 for New York.
With warm regards
Yours faithfully
Dr. Sanjiv Amin”
55. From the afore-noted referral letter it is evident that after July, 1996, pain and swelling continued to re-appear and the clinical picture was of typical active infection and X-Ray of the subject knee showed early loosening of the tibial prosthesis which goes to show that the infection was also the cause for early loosening of tibial prosthesis. The Medical Literature ‘Indian Journal of Rheumatology’ 2011 March Vol. 6, No.1 relied upon by the Opposite Parties also supports this and in fact, the same literature also substantiates that Staph Aureus can be a hospital derived infection.
“Since 1944, an increasing proportion of hospital acquired S. aureus strains have developed resistance to penicillin because of their ability to produce beta-lactamase. By 1950 approximately 80% of hospital acquired infections were caused by these penicillinase producers. In 1950s, penicillin-resistant S. aureus of a new phage type (see below, the so-called phage type 80) was first detected in Australia and then spread rapidly, causing a major pandemic of hospital-acquired infections. Because of the ‘resistance advantages’ of the new S. aureus strain, referred to as ‘hospital staph’, there were again outbreaks on hospital wards”.
56. The patient underwent revision of total left knee Arthroplasty involving removal of components, debridement and insertion of antibiotics, impregnated cement spacer. The fee collected by Dr. Ranawat was also for removal of implant followed by 5 to 6 weeks I.V. antibiotics and then re-implantation.
57. The learned Counsel appearing for the hospital submitted that in his questionnaire Dr. Ranawat mentioned that in case knee would be infected there would be additional charges, and therefore, stresses on the point that there was possibility of infection even at Dr. Ranawat’s clinic. Merely because Dr. Ranawat had mentioned that there would be extra charges in case infection occurs as it includes additional medical care and I.V. care for another 5 to 6 weeks, it cannot be said that infection ‘per se’ is a concluding factor after any knee surgery. The patient went to Dr. Ranawat after suffering for 8 months with pain and swelling post-surgery and with severe infection which even after desloughing, lavage and synovectomy did not subside. Keeping in view the afore-noted facts and the medical literature filed, we are of the considered opinion that Staph Aureus cannot be said to be a common complication which arises after such a surgery.
58. The hospital treatment record, Dr. Amin’s referral letter and the discharge summary of Lenox Hill Hospital, New York clearly establish that the patient was suffering from intermittent infection from 29.03.1996 till revision surgery of left knee performed on 29.11.1996.
59. It is significant to note that in the discharge summary dated 24.04.1996 as well as in the operation notes on 12.04.1996 and on 19.04.1996 nowhere the patient was advised to come for review or the prognosis explained in the event of this infection having set in. It is relevant to note that there is no mention of ‘Review’ date. On 08.06.1996, when Synovectomy was performed, there is an observation here that prosthesis components were found loose, but no advice or prognosis was stated in the discharge summary. The fact remains that the patient had to undergo revision of surgery on 25.11.1996 and she was admitted in Lenox Hill Hospital, New York as an in-patient from 25.11.1996 to 05.12.1996 and again from 13.01.1997 to 18.01.1997 necessitating additional surgery, pain, mental agony and huge medical expenditure to a tune of ₹18,08,075/-.
60. It is relevant to note that neither the above options nor the current risks were explained to the patient subsequent to the surgery and Desloughing and Synovectomy. At the cost of repetition, no such advise or review was suggested. Keeping in view all the afore-noted reasons and the fact that the doctor did not file his Affidavit rebutting the contentions of the patient, we are of the considered opinion that Dr. Agarwala was negligent in rendering post-operative care.
61. Now we need to examine the aspect as to whether the hospital is vicariously liable for the acts of its employees, as the treating doctor had died on 17.06.2004, during the pendency of the Complaint.
62. Learned counsel appearing for the Hospital submitted that there was no evidence led by the patient that there was any negligence or absence of standard medical care administered to the patient and that there are clear cut findings in the order of the State Commission which have not been challenged. He submitted that the State Commission has given a finding that there was no ‘medical emergency’ and the Team had properly attended to the patient in the absence of the treating doctor and that no deficiency of service on that ground can be attributed to the Opposite Parties. He also drew our attention to Para 25 of the State Commission’s order in which the Commission has recorded that the allegation of failed lavage of wound and draining the entire fluid cannot be established against the Opposite Parties. He vehemently argued that the Team discharged the duty as per standards of normal medical parlance which could not be faulted and that had there been any specific request from the patient, the treating doctor would have definitely personally attended the patient. He further contended that the original Bills of Lenox Hill Hospital of U.S.A. where the revision surgery was performed were not filed. He relied on the judgment of the Hon’ble Apex Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, wherein the Hon’ble Supreme Court in para 17 has laid down that expert opinion is required to establish medical negligence. He further submitted that the Complainant did not discharge her onus by bringing any expert opinion to establish her case. Learned Counsel argued that as the treating doctor died on 17.06.2004, the Consumer Complaint cannot be instituted against him and further that the Hospital cannot be made vicariously liable for the act of a doctor, who has since died.
63. As regards the submission of the learned Counsel that some of the findings of the State Commission have not been challenged by the Complainant, the scope and extent of a First Appeal needs to be addressed to.
64. The Hon’ble Apex Court in “Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179”, held as follows:
“……The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court….. “
65. In the case of “H.K.N. Swami v. Irshad Basith (Dead) by LRs. (2005) 10 SCC 243, the Apex Court held as under:-
“The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on laws. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title……..”.
The law mandates that in a First Appeal, a comprehensive interpretation of the entire case is to be taken into consideration and all the issues and the entire evidence has to be re-appreciated.
66. In the instant case though the State Commission has held that the culture report dated 23.04.1996 showed no growth of Staph Aureus Bacteria, the medical literature establishes that once antibiotics are administered, the subsequent culture reports would show ‘no growth’. The State Commission has also not taken into consideration the submissions of the Complainant that the ‘Duty of Care’ does not end with Surgery. We are of the considered view that the State Commission ought to have seen that the ‘high risk patient’ contracting Staph Aureus Bacteria, during the stay in the hospital, constitutes a ‘Medical Emergency’.
67. In fact the State Commission has categorically given a finding that the infection led to loosening of prosthetic joints, and that it was only on account of the act of the Opposite Parties that the patient had to undergo painful revision surgery in U.S.A. and awarded an amount of ₹18,08,000/- to be paid by the Appellants.
68. Regarding the submission of the learned Counsel that the expert opinion by Dr. Laud has not been relied upon by the State Commission, it is relevant to consider the Law laid down in Bolitho v. City and Hackney Health Authority, Lord Wilkinson, wherein it was observed that “The Court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The use of these adjectives – responsible, reasonable and respectable – all show that the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving the weighing of risks against benefits, the Judge before accepting a body of opinion as being responsible, reasonable and respectable, will need to be satisfied that in forming their views the experts have directed their minds to the question of comparative risks and benefits, and have reached a defensible conclusion on the matter”.
69. In the instant case, the opinion of Dr. Amin was rightly relied upon by the State Commission as the one which is based on ‘sound diagnosis’ depending on which letter, the patient had undergone further treatment in U.S.A. Therefore, the contention of the learned Counsel that Dr. Amin’s report ought not to have been counted upon is unsustainable.
70. The doctrine of vicarious liability extends the primary liability of the hospital for the wrongs or negligent acts of its servants, irrespective of whether their employment is permanent or temporary or casual paid or honorary, whole time or part time as in the case of visiting physicians or surgeons.
71. In Gold Vs Essex County Council (1942)2 ALL ER 237, the court held that the hospital is liable for the negligent acts of its nurses. This judgment removes the distinction created in the Meyer’s case and extends the primary liability of hospitals. In Cassidy Vs. Ministry of Health (1951) 1 ALL ER 574, the court found that a hospital employing two doctors on the contract of service vicariously liable for their negligent acts.
72. The Supreme Court of India in Spring Meadows Hospital Vs Harjot Ahluwalia through K.S. Ahluwalia (1998)4 SCC39 held the hospital liable to pay compensation for the negligence of its attending doctor who had allowed an unqualified nurse to give an intravenous injection to the patient against the advice of the consultant doctor and thereby contributed to the irreparable brain damage of the minor patient.
73. In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], it was held that it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are inter se between them but because of this it cannot be stated that the hospital cannot be held liable so far as treatment of the patients is concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from its liability by merely stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation. The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc. In another judgment by this Commission in case of Smt. Rekha Gupta v. Bombay Hospital Trust & Anr. [2003 (2) CPJ 160 (NCDRC)], related to negligence of a consultant doctor, the Commission observed that the hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by taking a stand that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians.
74. In addition to the hospital notes which were not signed by the treating doctor, it is also seen from the final bill dated 25.04.1996 the visitation fee was charged for the ‘KTD Team’ of doctors but not for the treating doctor, whose surgery fee was shown separately. This bill also establishes that he had not seen the patient between 27.03.1996 to 23.04.1996 being the period of admission and discharge respectively, during which time the final bill was made.
75. In the instant case, the bill served by the hospital included the consultant doctor’s fees. The hospital authorities are not only responsible for the acts of the nursing and other staff, but also for the acts of the anesthetists and surgeons, who practice independently but admit/operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole time or part time. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services.
76. In Achutrao Haribhau khodwa v. State of Maharashtra 1996 SCC (2) 634, the Hon’ble Supreme Court has held as follows:-
“Assuming even that the second operation was done negligently or that there was lack of adequate care after the operation which led to peritonitis, the fact remains that Dr. Divan was an employee of respondent no.1 and the State must be held to be variously liable for the negligent acts of its employees working in the said hospital. The claim of the appellants cannot be defeated merely because it may not have been conclusively proved as to which of the doctors employed by the State in the hospital or other staff acted negligently which caused the death of Chandrikabai. Once death by negligence in the hospital is established, as in the case here, the State would be liable to pay the damages”.
77. For all the afore-noted reasons, specifically in the absence of filing of any Affidavits by way of Evidence by Dr. Agarwala or the Hospital, we are of the considered view that ‘Duty of Care’ per se does not end with the Surgery and hold Dr. Agarwala and the Hospital liable for the negligent treatment rendered to the patient. As the treating doctor has expired after the Complaint was instituted and subsequent to filing of the Written Version, the State Commission has rightly made both the Hospital and Dr. Agarwala jointly and severally liable for the pain and suffering which the patient had undergone, necessitating subsequent surgeries in U.S.A. from 25.11.1996 to 18.01.1997.
78. However, we are of the view that the interest awarded by the State Commission is excessive and the same is hereby modified from 9% p.a. to 6% p.a. and this amount is directed to be paid within four weeks from the date of receipt of the order, failing which, the amount shall attract interest @9% p.a. from the date of this order till the date of realization.
79. Hence, these Appeals are allowed in part modifying the order of the State Commission to the extent indicated above.
80. In compliance of the order dated 05.08.2015, the Hospital has deposited Rs.18,00,000/- in this Commission, which may be released to the Complainant forthwith, with the interest accrued thereon. The afore-noted amount may be adjusted in the total decretal amount.
81. The statutory amount deposited by the Appellants at the time of filing of the Appeals shall stand transferred to the Consumer Legal Aid Account. |
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