ORDER
Rajyalakshmi Rao, Member
1. This is an appeal against the majority order dated 14th October, 1994 passed by the State Commission, Rajasthan in Complaint Case No. 42/1993.
2. The basic admitted facts are as follows :
The appellant No. 1 is the Consulting Surgeon at the J.D. Madan Nursing Home at Bandi Kui, in district Dausa. Appellant Nos, 2 and 3 are the mother and wife of appellant No. 1 respectively. Appellant No. 4 is the owner of the Diagnostic and X-ray Division located in the Nursing Home. The husband of respondent, Shri Kailash Chand Sharma is a resident of village Biwai, which is at a distance of 16 kms. from Bandi Kui. On 5th August, 1992 at 9.30 a.m. he was admitted in the said nursing home on complaints of severe abdominal pain with vomiting. After provisional diagnosis as “Ache Acute Abdominal pain with Gastute” and treatment in the evening (6 p.m.) of the same day he was discharged and left for his village. In the midnight between 5th/6th, he again developed severe abdominal pain and on 6th morning he was brought back to the nursing home where he was admitted at 10 a.m. Drip, injections and medicines were given on 6th, and on 7th a sonography was done. Sonography revealed stones in the gall bladder. The patient continued to receive medical treatment in the nursing home till 3.30 p.m. on 10th August, 1992, when he was discharged. He was admitted at the SMS Hospital, Jaipur at 6.30 p.m. Some medical treatment was given there, but the patient died at 5.30 p.m. on 11th August, 1992.
3. The wife of the deceased (present respondent) filed a complaint before the Rajasthan State Commission alleging gross negligence on the part of the present appellants in giving treatment in the nursing home. Her case is that:
(a) Contents of the Sonography Report and nature of ailment of the patient were not disclosed to the complainant. All that was told was that the patient was under drips and was given medicines and he will become alright. It was told that a minor operation is necessary and the same will be done by appellant No. 1 in the nursing home itself.
(b) When the Sonography Report of 7th August, 1992 revealed gall bladder stones, the patient should have been referred by appellant No. 1 immediately to SMS Hospital, Jaipur. Had the complainant been informed of the report of the Sonography and that an immediate operation was necessary, the complainant would no longer have kept her husband in the nursing home and would have got the operation performed in a better hospital by skilled doctors.
(c) No improvement in the condition of the patient was visible during 5 days when he was kept in the nursing home. The appellants only kept the patient in the nursing home in order to earn money greedily.
(d) Prescription, receipts of fees and bills of medicines were not given to the complainant.
(e) While discharging the patient on 10th August, 2002 on the persuation of the relatives of Kailash Chand, no details regarding medicines given to him were mentioned in the discharge certificate.
4. The case of the present appellant before the State Commission was that:
(a) Dr. Devendra Madan, opposite party No. 1 is a highly qualified Surgeon and has received commendation letters from State Government and other for his devoted work in a rural area.
(b) The patient twice got discharges from the nursing home by the complainant and her relatives against medical advice. When the patient was first brought on 5th August, 1992, he had abdominal pain and vomiting and after primary treatment was given there was improvement. Complainant was advised to keep the patient in the nursing home for further observation and investigation of this case to reach a final diagnosis. However, as the pain subsided, on the evening of the same day, Avadh Bihari, brother-in-law of the patient, who was working in the Munsif Court
at Bandi Kui got the patient discharges from the nursing home
against medical advice. While the treating doctor was told that the
patient would be taken to Avadh Bihari’s house in Bandi Kui itself, he
was in fact taken back to his village Biwai which is at a distance of 16 kms.
In the midnight, the patient developed pain again in the abdomen
at his village. Some injections were got administered in the village from compounder, as a result of which the patient’s blood pressure had gone down and the patient went into shock.
(c) When the patient was re-admitted on 6th August, 1992 in a condition of shock, he was again given mephenlin injection to raise the blood pressure to normal and other medicines and injections for control of adbominal pain. The blood pressure was low (at 70) and his pulse was high (122). The patient was kept under glucose. The Sonography done on 7th August, 1992 revealed that multiple stones in the gall bladder.
(d) The complainant and her relatives were told that the patient had to be operated immediately and they should get the signature of consent on the operation ticket. But the relatives took time to think and decide. They were also asked to arrange for a bottle of blood but they were not ready to do the same. As the blood pressure of the patient was going down again, it was kept up by giving injection Dopamine thorough dip, the dosage being adjusted from time to time under close observance. On 8th and 9th August, the relatives of the complainant were again informed of the need for an operation but they took no decision. On the 10th when the patient complained of restlessness and sleeplessness, the relatives told that if they have to get the operation done, they would get it done at SMS Hospital, Jaipur. The opposite party No. 1 firstly advised the relatives that the patient was not in a state of being shifted and as the patient’s blood pressure was being kept under control by Dopamine drips and that during shifting to Jaipur which is at a distance of 100 kms. if the drip (without a compounder to look after) stops, it would be a danger to the life of the patient. However, the relatives of the patient insisted on the discharge of the patient. Appellant No. 1 made an alternate suggestion that they should take an ambulance of the nursing home with a compounder and oxygen supply which would cost Rs. 500/- for the 200 kms. trip so that the patient can travel under safe conditions. However, they did not want to pay the money and took the patient in a diesel driven jeep of a relation, subjecting the patient to various risks.
(e) There are two accepted methods of treatment in case of acute Cholecystitis, the first being a conservative medical (non-operative) treatment followed by an operation 8-10 weeks after the acute symptoms have subsided. The second is to carry out an urgent operation as a routine measure. Standard Medical Treatises indicate that in more than 90% of cases, the symptoms of acute Cholecystitis subside with conservative measures. However, this conservative treatment and operation should be stopped forthwith if pain and tenderness spreads across abdomen and pulse rate rises. As regards the advisability of alternative method of routine early operation, standard books indicate that with this measure good results are claims when the operation is undertaken within 48 hours of the onset of attack, if the Surgeon is experienced and excellent operation facilities are available. However, the results obtained by this approach are no better than those that accrue from the “conservative delayed operation” method because in the latter, there are far fewer operative injuries to the main ducts. It is argues that the appellant No. 1 is a competent, experienced and diligent Surgeon who performed Cholecystectomy (removal of stones and Gall Bladder) operations in the past, that his operation theatre is well-equipped and that he would have preferred to follow the second alternative of an early routine operation. However, since the respondent and her relatives could not make up their minds about getting the patient operated in spite of his advise, he started the conservative treatment which is a valid treatment and continued with it and that the patient showed improvement all through his stay in the nursing home. On 10th August, 1992, his pulse was 92 per minute and BP was 1.12/76 hg.
(f) The total expenses including expenses on medicines and stay in the nursing home for 6 days amounted to only Rs. 2,131/-. These charges were nominal and by no stretch of imagination one could argue that the patient was kept in the nursing home only to make money due to greed of the appellants. (The bed charges are Rs. 10/- per day, nursing charges Rs. 10/- per day and doctor’s consultation fee Rs. 15/- per day, Sonography charges Rs. 250/-) as against this, the respondents has incurred an amount of Rs. 5,000/- in 24 hours in SMS Hospital, Jaipur.
(g) The discharge certificate was given by the appellant No. 1 on the letter pad of Madan Nursing Home in which treatment given and nature of illness was given.
5. After hearing parties, the State Commission by its majority judgment dated 14th October, 1994 relied on the version of the complainant and held that the O.P. No. 1 committed gross negligence in detaining the patient in the nursing home after 7th August, 1992, thus being responsible, for subsequent deterioration in his health resulting in his death and directed the opposite party to pay by way of compensation an amount of Rs. 8,83,881.65. The Honourable President of the State Commission, gave a dissenting order, holding that negligence on the part of the doctor is not at all established and that the complaint should be dismissed.
6. We have gone through the written arguments filed before us on behalf of the parties and also heard the parties. In addition to the previous arguments, certain new arguments were advanced before us on behalf of the respondent. It is argued that neither the respondent nor any other relatives of the patient was informed that operation is necessary and that they have not been asked for their consent. It is argued that the nursing home had no facilities for carrying out the surgery i.e. operation of cholecytectomy of cholecystitis. It is also argues that Annexure-8 (prescription slip of the patient) is a doctored document and cannot be relied upon the show that the doctor had advised operation.
7. These arguments have been adequately answered in the order of the Hon’ble President of the State Commission. In the complaint itself in para 7 the complainant stated that what is required is an ordinary operation which can be performed in the nursing home itself. The argument that the nursing home has no facilities for carrying out the surgery has no force. Firstly, in the complaint no allegation to this effect was made. Secondly, the appellant No. 1 has filed affidavits of various witnesses at Annexure A-4, Annexure A-5 and Annexure A-14 to show that he performed cholecystectomy operations. The allegation that Annexure-8 (prescription of the patient) is doctored in a new plea taken during this appeal. These records were filed before the State Commission and were considered by the State Commission. The complainant was supplied copies of the same and she did not challenge the genuineness of the said documents at that stage. The argument is now taken on the ground that while showing the dates in certain places, the year written is 93 whereas it should have been 92. (The date shown are 7th August, 1993, 8th August, 1993, and 10th August 1993). These documents is relied upon by appellant to show that he had advised operation on the 7th and on the 9th. Even if we do not place any reliance on this document, the respondent has himself admitted in para 7 of the complaint that respondent No. 1 had told on 7th August, 1992 after receipt of the Sonography Report that it was an ordinary operation and that he would do it in his nursing home. Similarly, nowhere has the complainant stated that before 10th they have consent to the doctor to operate and that the doctor did not operate. It appears that it is only 10th that they decided for the first time that the operation should be got done and that too at SMS Hospital, Jaipur. But by that time, since the patient’s blood pressure was not stable and he was on drip, appellant No. 1 advised that the patient cannot be shifted without risk.
8. It is the case of the appellant that the patient was received in this SMS Hospital in a stable condition on 10th August, 1992 as reflected in the records of SMS Hospital itself. It is further argued that the condition of the patient deteriorated in the SMS Hospital ultimately resulting in his death owing to the negligence of the doctors and the wrong treatment given at the SMS Hospital. The appellants made a prayer that the treatment records from SMS Hospital, Jaipur be summoned. Directions were given to summon the record on 12th February, 2001. Perusal of the record of SMS Hospital shows that at the time of admission on 10th evening there was “no guarding, no rigidity” which are the cardinal signs of perforation of the gall bladder and resultant Billiary Peritonitis or Septicemia, at the time of admission. Gall Bladder was also not palpable. The Death Certificate says that death occurred due to “respiratory arrest due to septicemia, acute cholecystitis, Peritonitis B/L Aspiration Pneumonitis”. It is argued that Peritonitis is the infection of Peritoneum due to leak of bile from a perforation of the gall bladder in case operation is not taken timely, and that septicemia is a condition which follows Peritonitis. It is argued that there was no indication of any of these conditions, when the patient was undergoing treatment at J.D. Madan Nursing Home and in fact his condition was steadily improving while he was there.
9. As the learned President of the State Commission observed in his dissenting order, the complainant has to prove, (1) that there was a breach of duty on the part of the doctor; and (2) that the breach of duty was the real cause of the damage complained of and such damage was reasonably foreseeable. This matter had to be decided in the light of the above well-settled propositions of law. Seen in this light no case of negligence is made out against the appellants. The appeal is, therefore, allowed and the majority order of the State Commission is set aside. The original complaint stands dismissed leaving the parties to bear their own costs.