Dr. S. M. KANTIKAR, PRESIDING MEMBER

The complex nature of medical negligence underlines the need for the complainant must demonstrate existence of four specific elements. The four Ds of medical negligence are duty, dereliction, direct causation, and damages. All four of these elements must be proven to succeed in medical negligence claim.

1. This common Order shall decide the above three Appeals arising from the impugned order dated 27.02.2014 passed by the State Commission, Goa in the Consumer Complaint No. 9/2012 preferred by the complainant Michael Rodrigues & Anr.

2. For the convenience the facts are drawn from F.A. No. 186 of 2014. All the parties are referred to be as placed in the Complaint No.9/2012. The Complainants are the parents of the deceased and the Opposite parties are the treating doctors as Dr. Shantaram N. Surme (OP-1), Dr. Sudhakar Raghuram Pai (OP-2), Dr. Dilip Amonkar (OP-3) and the Pai Hospital as OP-4.

3. On 26.06.2010, Ms. Ravina Rodrigues, the daughter of Complainants about 17yrs of age (since deceased, for short, the ‘patient’) for her abdominal pain consulted her family physician Dr. Shantaram N. Surme- OP-3 (for short ‘Dr. Surme’) at his clinic. Provisional diagnosis of Appendicitis was made and prescribed medicines for 5 days. On 02.07.2010, the Complainants admitted their daughter at Pai Hospital, Goa (‘OP-4- Hospital’) under the care of OP-1. It was alleged that on 03.07.2010, at the request of OP-1, Appendectomy surgery was negligently performed by Dr. Dilip Amonkar (OP-3) and the patient was discharged on 05.07.2010. Thereafter, the patient was re-admitted at OP-4 Hospital on 09.07.2010 for the complaints of abdominal pain, distension, vomiting and breathlessness. Dr. Shridhar Raghuvir Pai OP-2 (for short ‘Dr. Pai’) the owner of hospital advised Ultra-Solography (USG) on 10.07.2010 and asked to shift the patient immediately to Goa Medical College (GMC) at Bambolim. On the same day evening at 7.30 pm, the patient was shifted to GMC and emergency surgery was performed at 9.30 pm. On 15.07.2010, the patient suffered abdominal pain, breathlessness and she was shifted to ICU and kept on ventilator till 29.07.2010, but she expired. Being aggrieved by the alleged gross medical negligence of the three OP doctors at OP-4 hospital causing death of their daughter in the OP-4 hospital, the Complainants filed the Consumer Complaint before the State Commission, Goa to claim compensation of Rs. 60 lakhs and other reliefs.

4. The opposite parties filed their respective replies and denied any negligence during treatment. Their submissions are as below:

4.1 Reply from Dr. Shantaram N. Surme (OP-1) :

The OP-1 submitted that the patient was brought to his clinic only on 20.06.2010. He examined the patient who had pain in the right lower abdomen and maximum tenderness at Macburney’s point, therefore suspected as a case of acute appendicitis. She was given necessary medicines for 5 days and advised for blood tests, X ray and USG of abdomen. Also gave referral note for 2nd opinion of surgeon Dr. Shekhar Salkar. He further submitted that the mother of the patient was refusing to get USG and blood investigations done, which caused delay. He further submitted that the patient was admitted under his care in Pai Hospital (OP-4) at about 9.30 pm. Dr. Pai (OP-2) though he was surgeon and owner of hospital, had stopped operating patients due to his high diabetic status and doing only small procedures. Therefore, on 03.07.2010, Dr. Amonkar (OP-3) was called and he performed emergency appendectomy. The specimen of appendix was kept in formalin and given by the attending nurse to mother of patient for histopath investigation. The patient was discharged on 05.07.2010 in stable condition. The patient was brought again on 09.07.2010 to OP-4 for abdominal, pain distension, breathlessness. Based on the USG and clinical findings, the OP-2 referred her to GMC on 10.07.2010. On the same day, the 2nd emergency operation took place at GMC. After 20 days, the patient passed away in GMC, due to septicemia. Therefore negligence cannot be attributed to the OPs. He submitted that the Complaint suffers for non-joinder of GMC Hospital as a necessary party.

4.2 Reply from Dr. Shridhar R. Pai (OP-2) and Pai Hospital (OP-4) :

The OP-2 Dr. Pai owns Pai Hospital, submitted that the complaint is misconceived, malafide and vexatious. It was barred by law of limitation. It was filed by the Complainants in vengeance with the sole purpose to tarnish the reputation of OP-2 and 4. He submitted that he stopped operating, but do only small procedures due to his age and high diabetic status on insulin therapy. The patient was admitted in his hospital under the care of Dr. Surame (OP-1) and he used to visit the patient during his routine hospital rounds. The first operation of appendectomy was uneventful and the patient was discharged on 05.07.2010 in stable condition. The patient was re-admitted on 09.07.2010 and she was managed conservatively with IV fluids and medicines. The USG and blood investigations were done and based on the reports, he advised to shift the patient immediately to GMC, Bambolim. The patient was stable before shifting to GMC. However, the mother of the patient was reluctant to shift the patient to GMC, which caused delay. According to OP-2 the death of patient may be due to the negligence at GMC where ICU and ventilator bed was not made available for two days. The that the Complainant defamed and tarnished his and hospital’s reputation by circulating defamatory and derogatory CD through media and public show.

4.3 Reply from Dr. Dilip Amonkar (OP-3):

The OP-3, in his reply, submitted that he had experience of 34 years in the field of surgery and successfully performed more than 3000 appendectomy. He is presently working as Head of Department, Surgery in GMC, Bambolim, Goa. The patient chose to get admitted in Pai Hospital only in the night of 02.07.2012 with acute pain. Since the OP-2 Surgeon stopped operating the patient on health grounds and the hospital regular Surgeons, Dr. Shekhar Salkar was not available being out of station, the OP-2 called him in the night around 10.45pm as the emergency. The OP-3 being a govt. doctor was not willing to attend the patient in private hospital. However, due to peculiar emergent circumstances as a case of appendicitis, the OP-3 felt duty bound to attend the patient on humanitarian grounds. Accordingly, in the early morning on the next day, he attended the patient at Pai Hospital and examined her. The patient was clinically suffering from and at the verge of early perforation. He applied international clinical score of Alvarado (Mantrel’s), which was score ‘8’. Based on the symptoms and signs on clinical examination, it was classic case of acute appendicitis with impending gangrene or perforation, which was emergency. The OPs-1 and 2 were briefed about the findings. The blood count was also suggestive of acute infection and at the relevant time, abdominal USG was not available. Even as per the textbooks, the USG does not always help to diagnose appendicitis. The operative finding was congested, inflamed 3-4” long Retrocaecal, adherent tip of appendix showing gangrenous changes. There was no evidence of any blood in the peritoneal cavity. The appendix was ligated at the junction with caecum by transfixing sutures 2/0 vicryl and appendix was excised. The stump was buried in caecum and the abdomen was closed. The patient was comfortable till the discharge on 05.07.2010. She was taking oral fluids and soft diet also. It was a reasonable standard of care during the appendicitis as an emergency.

5. He further submitted that on 09.07.2010, the OP-2 called him telephonically and informed that the patient returned to Pai Hospital with abdominal distension and pain, as he was on the duty at GMC, he asked the OP-2 to shift the patient immediately to GMC for further management at institutional level. However, the patient was shifted to GMC on the next day and it was informed that USG report indicated left ovarian cyst with hemoperitoneum, thus, it was the condition due to bleeding. As in GMC, the department of Surgery had four units, working as per roster on different dates. As 10.07.2010 was Saturday, the unit IV was on duty headed by Dr. Patil and Dr. Amir Ali as a Senior Resident. The OP-3 submitted that no unit was supposed to interfere with the patients in other units unless the permission from unit head. The OP-3 further submitted that his role was limited and there was no negligence in his treatment.

6. The State Commission, upon hearing the parties partly allowed the Complainant and awarded Rs. 18 lakh to be paid by the doctors (OPs-1 to 3) jointly and severally. Also Rs. 10,000/- towards litigation costs.

7. Being aggrieved, the OPs filed instant First Appeals before this Commission under Section 19 of the Consumer Protection Act, 1986. Dr. Dilip Amonkar filed FA/186/2014, Dr. Shantaram N. Surme filed FA/200/2004 and Dr. Shridhar Raghuvir Pai, the owner of Pai Hospital filed FA/209/2014.

8. We have heard the arguments from the learned Counsel for both the sides. Perused the material on record inter alia the impugned Order and the entire medical record.

9. The learned Counsel for Complainant argued that the negligence was caused at two stages from all the OPs. At the first instance, their family doctor - Dr. Surme (OP-1), who was government doctor doing private practice admitted the patient in the Pai Hospital. Since the deceased was his patient, he was doing all the preparations for the operation. He just presumed the abdominal pain as appendicitis and did not investigate. The OP-1 made false submission that he himself collected patient’s blood sample and in the morning went to the laboratory at 7 AM and took a report on phone. However, the State Commission disbelieved the version of OP-1, which was corroborated with statement of sister (nurse) Angela Fernandes and Dr. Pai’s deposition before the Committee. The Committee held that without conducting any tests the operation was performed. The learned counsel further submitted that Dr. Amonkar has tried to build a case that he received frantic calls from Pai hospital and Dr. Surme to perform emergency operation on humanitarian grounds and he agreed. However, the statement of Dr. Pai before the Committee stated that from the time of admission he knew that Dr. Amonkar will be operating with Anesthetist Dr. Suresh. The Surgeon Dr. Amonkar was duty bound to see the investigation reports before surgery. However, he hurriedly proceeded with the operation without verifying medical records. Dr. Amonkar also admitted that he proceeded with the operation even when the operation theatre was not up to the mark and in unhygienic condition. The Sister Angela Fernandes informed about small acute appendix, and only appendix specimen was sent for histopathology.

10. The second limb of Complainant’s argument that though the patient was not fully recovered, she was discharged from Pai Hospital on 05.07.2010 and again readmitted in the morning at 8 AM on 9.7.2010 with severe abdominal pain, vomiting and breathlessness etc., but till the evening 6pm next day, nothing was done and the patient was kept waiting. It was casual approach of OPs-1 & 2 and the golden period of 24 hours was lost. They should have done USG or investigations earlier and immediately shifted the patient to GMC. But, the patient was shifted to GMC after 9 PM on 10.7.2010 and operated there immediately. At GMC, Dr. Dilip Amonkar failed to turn up to see or operate her and it was performed by one of his subordinates.

11. During the pendency of this matter the OP-2 expired and his legal heirs were brought on record. The learned Counsel for Appellant/OPs during arguments reiterated their evidence filed before the State Commission. The learned counsel for OP-3 argued that OP-3 performed appendectomy procedure as per the standards, it was uneventful, and the Patient was discharged from Pai Hospital on 05.07.2010 in good condition. There was no evidence that the adverse consequences were due to appendectomy. He further argued that the patient suffered totally other disease i.e. rupture of Corpus luteal cyst which was not present during appendectomy. The cyst(s) develops and grows in size during post ovulation period (after 14th day of the menstrual cycle). As per the menstrual history her last date was on 23.06.2010, thus on 03.07.2010, possibility of cyst was not there. The learned Counsel further argued that the operative findings at GMC did not suggest that the Appendectomy was a proximate cause of patient’s death. The learned Counsel brought our attention to the report of the Disciplinary Committee of the Goa Medical, which exonerated the OP-1.

Findings and Discussion:

12. On careful perusal of chronology of events we note that- the patient’s primary physician (family physician) was Dr. Surme (OP-1), who on 20.06.2010 clinically diagnosed acute appendicitis and treated medically. On 02.07.2010, he admitted the patient in Pai Hospital and Dr. Shridhar Pai (OP-2) the surgeon also confirmed the diagnosis. It is an admitted fact that Dr. Pai was not doing any surgeries due to his old age and health problems. The regular Surgeon of Pai Hospital - Dr. Shekhar Salkar was not available on 03.07.2010, therefore in the late night of 02.07.2010, Dr. Pai called Dr. Amonkar (OP-3) to perform the appendectomy surgery. Therefore, on 03.02.2007, the OP-3 attended the emergency on humanitarian grounds. He examined the patient and confirmed the diagnosis of acute appendicitis on the basis of Alvarado scoring method, the score was ‘8’. The surgery was successfully completed. In the case, the Alvarado scoring method adopted by OP-3 was an accepted reasonable standard of practice. This view dovetails from the case Achutrao Harbhau Khodwa Vs. State of Maharashtra[1], wherein the Hon’ble Supreme Court held that:

“The skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

13. Moreover, the Disciplinary Committee of the Goa Medical Council did not find any negligence and accepted the treatment of appendectomy was correct methods of diagnosis and treatment skills differ from doctor to doctor. In compliance of Medical Council of India regulations, the Disciplinary Committee of the Goa Medical Council (GMC) exonerated Dr. Amonkar (OP-3) with the following observations:

i. That there was no evidence that the Appellant received money/ fees for the Appendectomy.

ii. The Alvarado method and clinical examination were sufficient for pre-operative diagnosis, given the absence of normative lab testing methods for appendicitis.

iii. That the Appendix had in fact been removed, and there was no evidence that the diagnosis of the Appellant or other doctors at Pai Hospital was incorrect and the appendectomy had been performed on account of urgency.

iv. That Appellant was not on duty when Patient was admitted to GMC and could thus not have supervised the Patient in any manner.

Thus, we agree with the observations and decision of GMC. In our view, at the time of discharge from Pai Hospital, the patient was was stable, no signs of any complications. Therefore, for the symptoms developed after a week, have no nexus with appendectomy. The negligence cannot be attributed to the act of OP-3.

14. The State Commission wrongly placed reliance on the findings of the Committee. The Hon’ble Supreme Court in the cases of State Bank of India v. National Housing Bank[2] and recently, in Dr. Harish Kumar Khurana v. Joginder Singh & Others[3], held that a magisterial inquiry ought to have been discarded by the consumer fora since it did not constitute “medical evidence”. It is pertinent to note that the Inquiry Committee set up by the Government of Goa was merely an ad-hoc entity, set up without any statutory mandate governing its functioning, or any procedural safeguards. The Committee comprised of bureaucrats, one non-practising doctor, and only two other doctors. The OPs were not heard before the Committee, it was against the principle of natural justice.

15. The State Commission wrongly accepted the statement of nurse Angela that there was nothing serious with the appendix specimen. It should be borne in mind that the nurse was neither an operating surgeon nor a Pathologist to interpret the specimen of appendix. The Pai Hospital handed over the specimen of appendix to patient’s mother to take for histopathological examination.

16. The important issues involved in the instant matter is whether appendectomy was the cause of intra-abdominal hemorrhage, secondly was there delay in referring the patient to GMC by Pai Hospital, which could have saved the patient by emergency exploration at GMC.

17. It is pertinent to note that the OT notes of GMCH were clearly mentioned about appendicular stump with vicryl ligatures was intact and the ligature of mesoappendix was not slipped off. The PM findings were consistent with the same. It is pertinent to note that after 7 days of operation (5 days after discharge), the patient developed signs of distension of abdomen and breathlessness. If there was any injury to vessel or any perforation caused during appendectomy, the patient would have developed signs within 24 hours. Thus by any stretch of imagination the hemorrhage seen during 2nd operation at GMC was not due to appendectomy. Therefore, in our considered view, the appendectomy was not a proximate cause of abdominal hemorrhage and death of the patient.

18. It is evident that on 09.07.2010, during 2nd admission in the Pai Hospital, the patient was under care of OP-1 and OP-2. The patient was under conservative management and observation. On 10.07.2010, Dr. Sushila Shenoy attached to Pai Hospital conducted USG and reported it as fluid in the abdomen which could be haemorrhagic, it was confirmed by Dr. Pai by aspiration under USG guidance as a fresh blood. The bleeding was suspected to be due ruptured left hemorrhagic corpus luteal cyst and therefore, immediately Dr. Pai took decision to shift her to GMCH. It was confirmed by emergency exploratory laparotomy done at GMCH on 10.07.2010.

19. The next point for discussion is whether appendectomy was the proximate cause (Causa Causens) of the death of the patient. To repeat again, on analyzing the chronology of events, from the medical record, admittedly the appendectomy was done on 03.07.2010, it was uneventful and patient was discharged on 05.07.2010 in stable condition. Later on after 5 days of discharge, the Patient was re-admitted on 09.07.2010 in OP-1 and on the next day she was shifted to GMCH with suspected ruptured left ovarian hemorrhagic corpus luteal cyst. At GMCH emergency exploratory laparotomy was done on 10.07.2010 night and partial left ovarian cystectomy was performed. In the operative notes (OT) it was expressly mentioned that the appendicular base was normal, with intact vicryl ligatures also on mesoappendix. However, the Committee was conspicuously silent on those crucial OT findings. Thus plain reading of the statement ‘Septicemia because of intra-abdominal hemorrhage following appendectomy’ is wrong and misleading. After 10.07.2010, the exploratory laparotomy at GMC, her condition deteriorated and developed ARDS, pneumonia and multi-organ failure. In our view, there was no nexus between the appendectomy and the eventual death after 26 days of the Patient. It was not even remote consequence of appendectomy. Thus, it was nobody’s case; the Committee does not say so, it only says that the death was caused by Septicaemia due to intra-abdominal haemorrhage following appendectomy. In real sense, in our view, the word “following appendectomy” does not mean that it was ‘due to appendectomy’.

20. We have perused few articles and Novak’s Gynecology on the subject.

(i) Ovulation is a physiological monthly event in women of reproductive age. Corpus luteum hemorrhage may occur spontaneously or often triggered by coitus, trauma, exercise, or vaginal examination. The risk of hemorrhagic complications of ovulation starts on the ovulation day and extends throughout corpus luteal life span, which is 14 days without pregnancy. Its presentation is variable depending on the extent of the hemorrhage but it can be massive requiring surgical intervention and blood transfusion. Patients on anticoagulation are at higher risk for significant severe hemorrhage from ruptured corpus luteum[4].

(ii) The Corpus luteum cyst rupture with consequent hemoperitoneum is a common disorder in women in their reproductive age[5]. The spontaneous massive hemoperitoneum secondary to a hemorrhagic corpus luteum cyst is an exceedingly rare, but potentially life-threatening presentation, with few cases reported in the literature[6].

21. To bring successful claim (complaint) in medical negligence case the patient or the Complainant bringing the action must prove the four D’s against the opposite parties –doctor or the hospital. The 4 D’s of medical negligence stand for ‘Duty’, ‘Deviation’, ‘Direct Cause’ and ‘Damages’. One of most important element of 4Ds’ of medical negligence is ‘Direct Cause’. The causation must be direct and the complainant will be unable to make any claims unless he can prove it. In fact, the Department of Forensic Medicine at GMC in its final opinion stated the cause of death after 19 days was not due to the second surgery. The State Commission in its impugned order has not considered it. In the instant case the OPs performed their duty as per the reasonable standards. There was no iota of evidence of deviation from the duty care. In our view there was no nexus between the sufferings of patients after 09.07.2010 with the appendectomy operation performed on 03.07.2010. The complications arose due to ruptured corpus left ovarian luteal cyst. The operative findings clearly revealed hemorrhagic corpus luteal cyst and the appendicular stump with vicryl sutures were intact. Thus, the septicemia developed after 2nd surgery was not due to initial appendectomy.

22. It is not enough to prove that harm occurred; the Complainant/ patient must also prove that the doctors failure to follow protocol was the direct cause of said injuries. It is pertinent to note that since patient had symptoms of pain and tenderness in right iliac fossa, after abdominal examination OP-1diagnosed it as acute appendicitis. No symptoms were suggestive of left ovarian pathology, and there was no need for detailed examination on left side. Appendicitis and left ovarian hemorrhagic cyst are distinct and separate entities.

23. Considering the peculiar facts of the case, the OP-1 being a Head of Department of Surgery at GMC, on humanitarian ground he visited Pai Hospital in early hours for an emergency appendectomy. Surgery was uneventful and ended without complications. Postoperative care was taken by Pai Hospital. After 5 days of post discharge, the patient presented with abdominal pain due to ruptured luteal cyst and bled inside the abdomen, which was unrelated to appendectomy which appears to be an innate body response of the patient and not due to negligence.

24. The Hon’ble Supreme Court in its number of decision laid down the law on medical negligence. In Dr. Harish Kumar Khurana v. Joginder Singh & Ors (supra), it was held that:

“16. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. [...]” (Emphasis Supplied)

25. In para 89 of the judgment in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others[7], the test had been laid down by the Hon’ble Supreme Court. I would like to quote the sub para (IX) and (XI) as under:

(IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

(XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

We are of considered view that the doctors OP-1 to 3 have performed their duties with reasonable skill and competence in the interest of the patient, they deserve protection from such litigation. The Complainants apart from filing complaint in Consumer Commission have tried to exercise their legal remedy through Goa Medical Council, the Chief Minister of Goa and filing criminal complaint. However, they failed to prove the negligence of treating doctors.

26. We appreciate the pain of the Complainants, but then, that by itself, cannot be a cause for awarding damages for the passing away their daughter. We have sympathy for the Complainants, but sympathy cannot translate into a legal remedy. The Order passed by the State Commission is set aside and the appeals are allowed. Consequently, the Complaint No. 9/2012 filed before the State Commission stands dismissed. The Parties to bear their own costs.

27. The free copies of this Order be sent to the parties within a week.

28. The amount, if any, deposited by the Appellants before the State Commission or this Commission shall be released with accrued interest, if any, after 6 weeks from today to the respective Appellants.