NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(From the order dated 8.11.1995 in complaint No.31/94
State Commission Gujarat)
Dr. Shailesh Shah … Appellant
Aphraim Jayanand Rathod … Respondent
HON’BLE MR. JUSTICE D.P. WADHWA,
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER,
HON’BLE MR. JUSTICE K.S. GUPTA, MEMBER.
Medical negligence – surgeon – consent not obtained for surgery though termed as re-exploration – hospital record not produced – held deficiency in service.
Mr. Chirag M. Shroff, Advocate with him.and with
Appellant Dr. Shailesh Shah – in person.
For the respondent : Mr. P.D. Parmar, Advocate.
O R D E R
DATED THE 8th May, 2003.
JUSTICE D.P. WADHWA, J.(PRESIDENT)
The appellant, a practicing medical practitioner, has filed this appeal against the order of the Gujarat State Consumer Disputes Redressal Commission holding him guilty of medical negligence in the treatment of respondent-complainant and awarding Rs.1.00 lakh as compensation with interest @ 15% per annum from January 1, 1994 till payment. Cost of Rs.1,000/- was also awarded. When notice was issued in the appeal, the impugned order of the State Commission was stayed.
Rathod, the complainant alleged in his complaint that he had consulted the appellant Dr. Shah on 4.8.93 of the complaint of stomach-ache. Dr. Shah had prescribed certain medicines and also recommended for blood, urine and stool tests. Next day complainant got these tests. He showed the report to Dr. Shah who diagnosed the illness of Rathod as that of acute appendicitis. Dr. Shah advised him for operation. Complainant says he was asked to come back after five days. Dr. Shah wrote a letter dated 5.8.93 to one Dr. Dugly who it appears was the one who had referred the case of Rathod to Dr. Shah. Dr. Shah wrote that he had come to the conclusion that Rathod was suffering from acute appendicitis and that he advised for ‘con.’ (conservative) and then he wrote “We want to think over”. This letter shows that Dr. Shah also prescribed certain medicines and then concluded his letter stating as under”
“I will like to follow the case again after 5 days.
Once again thank you very much.
With warm regards”.
Rathod, the complainant says when he met Dr. Shah on 9.8.93, he was fully well and yet Dr. Shah without carrying out any further test , said that operation was still necessary and he admitted him. On 10.8.93 operation was performed by giving spinal anesthesia. It took 11 hours for the operation to conclude which in normal circumstances would have taken only 4 hours. Complainant was not given anything to eat or drink and was kept ‘nil by mouth’ and did not take anything orally. He was administered injection and was put on drips and as this was done by unskilled and unqualified staff of Dr. Shah, there was swelling on his hand with the result that his two fingers became completely deadened and thereafter could not work as fitter. All this period he was kept in the hospital of Dr. Shah and on 14.8.93, as Rathod had been suffering from high temperature, Dr. Shah called a physician by the name Dr. Kirti P. Shah to examine Rathod who prescribed certain medicines. He asked Dr. Shah to carry out various tests all of which Dr. Shah failed to carry out. Whatever tests were done these were normal. Rathod says that on 14.8.93 Dr. Shah advised him to take coconut water and tea etc. But as Rathod started vomiting after taking these liquids Dr. Shan then advised him to stop the same. On 18.9.93 he was called in the operation theatre saying that stitches were to be removed and without informing anything to him and without his consent the second operation was performed on him. On 27.8.93 Rathod was discharged after suffering great deal of pains, losing two fingers of his right hand and suffering from hernia because of the gross negligence committed by Dr. Shah in operating Rathod, and then second time operating him without his consent. Rathod said all this action of Dr. Shah was against medical opinion as contained in the medical treatise ‘A Short Practice of Surgery’ by Belly and Love’s. Complainant claimed Rs.8.00 lakhs as damages as under:
“Rs. 35,000.00 operation expenditure
Rs.3,50,000.00 physical torture and disability
Rs 400.00? mental suffering
Rs. 15,000.00 treatment of ‘Hernia’.
Dr. Shah denied allegations of Rathod, the complainant. He said what he did was in the best interest of Rathod and as per the standard medical practice. He said when Rathod met him on 4.8.93 his examination showed signs suggestive of emergency intervention because he was suffering from acute appendicitis. However, Rathod wanted to consult his family members and also wanted a special room in the hospital which was not available at that time. He said it was on this account that the operation got delayed. But this averment of Dr. Shah does not stand to reason when in the letter written by him to Dr. Dugli he did not mention any such desire of Rathod for delaying the operation but Dr. Rathod himself wrote “We want to think over”. He has not explained what he meant by this statement. Dr. Shah admitted that operation did take long time but he said that because of advance appendicitis where the appendicitis was surrounded by collection of pus. He said that these operative findings required the operation to be performed by Rutherford Morrison’s muscle cutting incision. According to Dr. Shah the operation was absolutely necessary and in the interest of patient and further delay would have proved fatal for him. He denies the allegation of Rathod that the operation was unnecessary. Dr. Shah admitted having called Dr. Kirti P. Shah, a physician for examination of Rathod. He said it was necessary because Rathod had developed hypertension and he did not respond to the treatment given to him. Dr. Shah admits that Dr. Kirti P. Shah had advised certain tests and prescribed certain medicines. But then again even after administration of higher antibiotics for two days the examination reveled paralytic ilous. Dr. Shah says that he advised re-exploration. He had given reasons as to why he did not think it necessary to have tests carried out as advised by Dr. Kirti P. Shah and that re-exploration was immediately necessary and that was performed with the “informed consent through the same incision”. Then he states as under:
“During re-exploration collection of pus was found in the right iliac fossa and right paracolic gutter. It was because of continuing process of infection inside the right iliac fossa even after the complainant’s badly infected appendix was successfully removed by me at the first operation. This continuing process of pus formation even after removal of an organ is a known phenomenon in surgery, particularly in those cases who present late themselves for operation. The delay on the part of the complainant to agree for appendicectomy is the reason for the complication of his pus formation in his right iliac fossa. I had taken special care to see that the pus was totally and completely removed and therefore I also resorted to thorough irrigation of abdominal cavity. On a close scrutiny, the internal examination revealed that because of infection process, Oedema and congestion attributable to severity of disease, there was a small leak in the caecum and therefore I took sutures in two layers and omentopexy was also done to reinforce the suture. It is submitted that this exercise was undertaken after informing the complainant about the same and after taking his consent. The purpose of the re-exploration was also explained to the complainant. However, if he has not followed the same till the date of the complaint, I cannot help him.
Dr. Shah says then as the post operative monitoring and administration of medicines showed considerable improvement, Rathod himself requested him to give him discharge on 27.8.93. However, in spite of specific advice to Rathod to come for dressing everyday he did not come for the purpose regularly. Even further advice to the complainant to come to the hospital once in a week was ignored by him. As to the allegations of hernia by the complainant Dr. Shah states as under:
“The true facts relating to Hernea and Piles are given hereinafter. The correct facts are that the complainant had telephoned me in the late evening after about a week of getting discharge and complained of retention of urine and difficulty in passing the urine. I therefore, advised him immediately examination and treatment to avoid any further complication. However, the complainant refused to adhere to the advise, insisted on a prescription of temporary medicines on the phone itself. I therefore, advised necessary medicines. I also advised the complainant to come to the clinic on the next morning. However, the complainant did not turn up on the next day, but again telephoned me at midnight and repeated the complaint. Therefore, I advised him repeatedly to come to my clinic personally, but the complainant was adamant and refused to come personally. It was only on the next day that the complainant came to my clinic and on examination diagnosed Urinary Tract Infection with stone. The same was confirmed readiologically and pathologically. I therefore, advised flush therapy for 3 days. But the complainant took the treatment only for a day and on relief of pain requested for a discharge on the ground that his mother being a nurse can give the treatment at his residence. I advised him not to resort to the same for his benefit, but again the Complainant insisted for a discharge and was therefore discharged against medical advice”.
Dr. Shah then states that Rathod again came to him for pain around anus and constipation which was absolutely independent problem. Even here the advice of Dr. Shah was not followed by Rathod. But then that is his affair. Denying any act of negligence Dr. Shah says that complaint should be dismissed.
State Commission on the examination of the record held:
(i) The explanation given by Dr. Shah as to by Rathod wanted to come after 5 days was not correct.
(ii) Rathod was right in alleging that his swelling on his right hand was on account of improper administration of intravenous fluids and injections.
(iii) When Dr. Shah had consulted Dr. Kirti P. Shah, physician, he should have been examined as witness and there was nothing on the record to show that Dr. Kirti P. Shah advised re-exploratory surgery.
(iv) Second operation was performed as Rathod was not recovering after the first operation.
(v) There was no written consent of Rathod performing the second operation. Explanation offered by Dr. Shah as to why written consent could not be taken from Rathod was not correct. There was no justification made to Rathod that because of drip he could not sign the consent form.
(vi) There was delay in operating on Rathod for acute appendicitis when it was emergency case and the delay was on account of Dr. Shah himself.
(vii) There was no explanation as to what was the tests prescribed by Dr. Kirti P. Shah which were not got conducted by Dr. Shah and the opinion of Dr. Shah why differed from the consulting physician.
In support of his case complainant himself appeared for examination and so also Dr. Shah. No other witness was produced by either of the parties. Hospital record was not available as according to Dr. Shah file was handed over to Rathod at the time of discharge. As a matter of fact complainant does admit in his cross examination that file was given to him. But then his answer is left at that stage and no clarification was sought as to what the file contained. It is difficult for us to believe that Dr. Shah would have given the record of the hospital as well. Complainant was not the only patient. He is running a hospital. According to him he has been working as a surgeon for the last about 10 years and had performed about 20000 minor and major operations and further that he examined of an average not less than 150 patient in a month. It is, therefore, difficult to believe how he could give minute details of the treatment of Rathod in the absence of the medical record. Even after he had given away the file to Rathod he could certainly have asked for production of file before filing his written version. This he did not do. A surgical note would have been of a great assistance to the Commission to arrive at the correct conclusion. But then he has produced copies of purported consent form for the operation to be performed on Rathod on 10.8.93 and 18.8.93. These are in Gujarati language. That dated 10.8.93 is signed by Rathod as A.J. Rathod but the second by a person whom Dr. Shah says is the father in law of the complainant. When we examined consent form of operation it does not show that it could have been with the anesthetist whose name Vijay Parekh has been written in hand. The form is of hospital of Dr. Shah himself. In fact, the consent form protects more Dr. Shah than the anesthetist. These were produced before us by Dr. Shah himself and these forms gives lie to his version that file which contained surgical notes or the treatment given to Rathod was taken away by him. It is unbelievable that note prepared by the surgeon at the time of operation would have been given by surgeon, Dr. Shah to Rathod. To us it appears that this plea of file containing surgical notes had been taken by Rathod, is to give Dr. Shah a defense to protect him from the allegation of his being deficient in service and not having performed the first operation after taking necessary precautions like proper antibiotic therapy. Surgical notes could have also been shown as to why exploration as alleged by Dr. Shah was necessitated. Dr. Shah says re-exploration was required because of intra abdominal sepsis perforation. There is nothing on the record to support such a version. We are left in the dark as to the course of treatment by Dr. Shah. Hospital record would have also shown if the first operation which led to subsequent complications and where did the fault lay. Various anorectal symptoms which the patient developed could be due to sepsis which extended to pelvis resulting in irritation of rectum. When we asked how these two documents could have been produced by Dr. Shah, when file had been handed over to Rathod, his answer was that these were from the records of the anesthetist! As to why he did not get the signatures of Rathod himself on the consent form for the second operation Dr. Shah’s answer was that drip had been put on the right hand of Rathod. We cannot give any credence to such an explanation. Rathod was not in any emergency situation that drip could not be removed for a while to get his signatures or drip even shifted to other hand. No reason has been given by Dr. Shah as to why he did not produce the anesthetist to support his version. We must, therefore, draw a presumption against Dr. Shah that this witness would not have supported him.
We must hold that 2nd operation was performed on Rathod by Dr. Shah without his knowledge and consent and that itself amounts to serious deficiency in service on his part.
After examining the whole record ourselves, we find no ground to differ from the findings of the State Commission. It is a case where Dr. Shah was deficient in rendering service to Rathod-complainant.
We uphold the order of the State Commission and dismiss the appeal with costs which we assess at Rs.5,000/-.